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THE AMERICAN COMMONWEALTH 





THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO 
SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Lm 

TORONTO 




THE 


AMERICAN COMMONWEALTH 


BY 

JAMES BRYCE 

O 

AUTHOR OF “THE HOLY ROMAN EMPIRE” 


IN TWO VOLUMES 

VOL. I 

The National Government — The State Governments 


NEW EDITION 

COMPLETELY REVISED THROUGHOUT 
WITH ADDITIONAL CHAPTERS 


J^Efrl fgfltk 

THE MACMILLAN COMPANY 
1924 


All rights reserved. 


rTYtsA 10 



\ 


_ ~ A, 

L'X 


Copyright, 1893, 

By MACMILLAN AND CO. 

Copyright, 1910, 1914, 

By THE MACMILLAN COMPANY. 

Copyright, 1921, 

By RT. HON. VISCOUNT BRYCE. 


Set up and electrotyped. Published November, 1910. Reprinted 
January, August, 1911; March, September, 1912. 

New edition, with corrections, March, 1913. 

New edition, with corrections, May, 1914; July, 19x5; January, 
1917. 

1 S' 3Y A \ 







Norfajooti $rrsg 

Jo S. Cushing Co. — Berwick & Smith Co. 
Norwood, Mass., U.S.A. 



Co ntu iFrfentis m'ts Colleagues 
ALBERT VENN DICEY 
THOMAS ERSKINE HOLLAND 



PREFACE TO THE FIRST EDITION 


As the introductory chapter of this work contains such 
explanations as seem needed of its scope and plan, the 
Author has little to do in this place except express his 
thanks to the numerous friends who have helped him with 
facts, opinions, and criticisms, or by the gift of books or 
pamphlets. Among these he is especially indebted to the 
Hon. Thomas M. Cooley, now Chairman of the Interstate 
Commerce Commission in Washington; Mr. James B. 
Thayer of the Harvard Law School, Cambridge, Mass.; 
Hon. Seth Low, formerly Mayor of Brooklyn; Mr. E. L. 
Godkin of New York; Mr. Theodore Roosevelt of New 
York; Mr. G. Bradford of Cambridge, Mass.; and Mr. 
Theodore Bacon of Rochester, N.Y. ; by one or other of 
whom the greater part of the proofs of these volumes have 
been read. He has also received valuable aid from Mr. 
Justice Holmes of the Supreme Court of Massachusetts; 
Mr. Theodore Dwight, late Librarian of the State Depart¬ 
ment at Washington; Mr. H. Villard of New York; Dr. 
Albert Shaw of Minneapolis; Mr. Jesse Macy of Grinnell, 
la.; Mr. Simeon Baldwin and Dr. George P. Fisher of 
New Haven, Conn.; Mr. Henry C. Lea of Philadelphia; 
Col. T. W. Higginson of Cambridge, Mass. ; Mr. Bernard 
Moses of Berkeley, Cal.; Mr. A. B. Houghton of Corn¬ 
ing, N.Y.; Mr. John Hay of Washington; Mr. Henry 
Hitchcock of St. Louis, Mo.; President James B. Angell 
of Ann Arbor, Mich. ; Hon. Andrew D. White of Syra¬ 
cuse, N.Y. ; Mr. Frank J. Goodnow and Mr. Edward P. 
Clark of New York ; Dr. Atherton of the State College, 
Pennsylvania; and the authorities of the U.S. Bureau of 
Education. No one of these gentlemen is, however, respon¬ 
sible for any of the facts stated or views expressed in the 
book. 


viii 


PREFACE 


The Author is further indebted to Mr. Low for a chapter 
written by him, which contains matter of much interest 
relating to municipal government and politics. 

He gladly takes this opportunity of thanking for their 
aid and counsel four English friends : Mr. Henry Sidgwick, 
who has read most of the proofs with great care and made 
valuable suggestions upon them; the Rev. Stopford A. 
Brooke, whose literary criticisms have been very helpful; 
Mr. Albert Y. Dicey, and Mr. W. Robertson Smith. 

He is aware that, notwithstanding the assistance rendered 
by friends in America, he must have fallen into not a few 
errors, and without asking to be excused for these, he desires 
to plead in extenuation that the book has been written under 
the constant pressure of public duties as well as of other 
private work, and that the difficulty of obtaining in Europe 
correct information regarding the constitutions and laws of 
American States and the rules of party organizations is very 
great. 

When the book was begun, it was intended to contain a 
study of the more salient social and intellectual phenomena 
of contemporary America, together with descriptions of the 
scenery and aspects of nature and human nature in the West, 
all of whose States and Territories the Author has visited. 
But as the work advanced, he found that to carry out this 
plan it would be necessary either unduly to curtail the 
account of the government and politics of the United States, 
or else to extend the book to a still greater length than that 
which, much to his regret, it has now reached. He there¬ 
fore reluctantly abandoned the hope of describing in these 
volumes the scenery and life of the West. As regards the 
non-political topics which were to have been dealt with, he 
has selected for discussion in the concluding chapters those 
of them which either were comparatively unfamiliar to 
European readers, or seemed specially calculated to throw 
light on the political life of the country, and to complete 
the picture which he has sought to draw of the American 
Commonwealth as a whole. 

October 22, 1888. 

/ 



PREFACE TO THE EDITION OF 1910 


As the introductory chapter of this book contains such 
explanations as seem needed of its scope and plan, I have 
little to do here except advert to the alterations made in it 
since it was first published in 1888. Some years afterwards, 
in 1898-95, a revised and much enlarged edition appeared; 
and since that date various minor corrections and additions 
have from time to time been made. Now in 1910 I find that 
so many changes have taken place in the United States that 
a further complete revision has become necessary, and that 
some note ought to be taken of certain new phenomena in 
American politics and society. In this edition, accordingly, 
there have been introduced, sometimes in the text, some¬ 
times in supplementary notes, concise descriptions of such 
phenomena. 

Besides these corrections and additions, which do not affect 
the general plan, four new chapters have been added. One 
deals with the transmarine dominions of the United States 
acquired since 1888, a second with the huge influx of immi¬ 
grants who have been arriving from Central and Southern 
Europe, a third with the more recent phases of the Negro 
Problem in the South, and a fourth with the remarkable 
development in late years of the American Universities. 

My friend, Mr. Seth Low, formerly mayor of New York, 
has been kind enough to rewrite the chapter on Municipal 
Government which he contributed to the first edition, and 
which contains matter of much interest relating to city 
government and city politics. 

I am indebted to Professor Beard of Columbia University 
for information on several topics which I could not person¬ 
ally investigate. Besides the difficulties of selection and 
compression which attend any attempt to deal in two vol¬ 
umes with so vast a subject as that of this treatise, I have 
found in revising it a further difficulty in the fact that many 


X PREFACE TO THE EDITION OF 1910 


political institutions in the United States, such as forms of 
City Government, the party nominating machinery, and the 
methods of direct popular legislation, are at present in a 
transitory or experimental condition ; the variations between 
one State and another growing more numerous with the 
emergence of new ideas and new schemes of reform. It 
would have been impossible to find space to describe these 
otherwise than in outline, even could I, under the heavy 
pressure of other duties, have found time to study all these 
things minutely. But an effort has been made to call atten¬ 
tion to the more important among these new political ar¬ 
rangements, and to give in each case the most recent facts, 
though I am for obvious reasons precluded from adding com¬ 
ments on many of the facts which it is proper to state. 

It was with some anxiety that I entered on this revision, 
fearing lest the hopeful spirit with which my observation of 
American institutions from 1870 to 1894 had inspired me 
might be damped by a close examination of their more recent 
phases. But all I have seen and heard during the last few 
years makes me more hopeful for the future of popular gov¬ 
ernment. The forces working for good seem stronger to-day 
than they have been for the last three generations. 

In the prefaces to the first and third editions I expressed 
my thanks to a large number of friends, American and Eng¬ 
lish, who had helped me. Many of those to whom I was most 
indebted have now passed away. To those who happily re¬ 
main I renew the expression of my gratitude, and am glad to 
thank also many others, too numerous to be all mentioned 
by name, in the United States, who have within the last few 
years helped me in a thousand ways towards acquiring a more 
thorough knowledge of their country. 

I venture to take this opportunity of saying how deeply I 
appreciate the extraordinary kindness with which this at¬ 
tempt, made by one who was then, comparatively speaking, 
a stranger, to describe American institutions, has been received 
in the United States, and of which I have received so many 
proofs in travelling to and fro throughout the country. 

JAMES BRYCE. 


October 22,1910. 



NOTE TO EDITION OF 1914 


This new edition has been carefully revised in order to 
introduce into the text the changes made by recent amend¬ 
ments to the Constitution, and otherwise to bring the book 
up to date. 

February 26, 1914. 


xl 












CONTENTS 


VOL. I 

PAGB 

List of Presidents .xiv 

Dates of some Remarkable Events in the History of the 

North American Colonies and United States . . xv 

Area, Population, and Date of Admission of the States . xvi 


CHAP. 

i. Introductory 


1 


ii. 

hi. 



VI. 


VII. 

VIII. 

IX. 


XII. 

XIII. 

XIV. 
XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 


PART I — The National Goveknment 

The Nation and the States .... 
The Origin of the Constitution 
Nature of the Federal Government . 

The President. 

Presidential Powers and Duties 
Observations on the Presidency .... 
Why Great Men are not chosen Presidents . 

The Cabinet. 

The Senate. 

The Senate as an Executive and Judicial Body 
The Senate : Its Working and Influence . 

The House of Representatives .... 

The House at Work ...... 

The Committees of Congress .... 

Congressional Legislation. 

Congressional Finance. 

The Relations of the Two Houses 
General Observations on Congress . 

The Relations of Congress to the President . 
The Legislature and the Executive . 

The Federal Courts ...... 

xiii 


15 

19 

32 

38 

53 

69 

77 

85 

97 

107 

113 

126( 

144 

156 

167 

176 

185 

191 

209 

216 

229 








XIV 


CONTENTS 


CHAP. 

xxiii. The Courts and the Constitution 

xxiv. The Working of the Courts . 

xxv. Comparison of the American and European 

Systems.. 

xxvi. General Observations on the Frame of National 

Government. 

xxvii. The Federal System ... . 

xxviii. Working Relations of the National and the 
State Governments. 

xxix. Criticism of the Federal System . 

xxx. Merits of the Federal System . 
Supplementary Note on the Federal System 

xxxi. Growth and Development of the Constitution . 
xxxii. The Amendment of the Constitution 

xxxiii. The Interpretation of the Constitution 
xxxiv. The Development of the Constitution by Usage 
xxxv. The Results of Constitutional Development 


PAGE 

242 

262 

278 

298 

312 

324 

341 

350 

358 

360 

365 \/ 

374 

392 

401 


PART II — The State Governments 


xxxvi. Nature of the American State . . . .411 

xxxvii. State Constitutions ...... 427 

xxxviii. The Development of State Constitutions . . 451 

xxxix. Direct Legislation by the People . . . 464 

xl. State Governments : the Legislature . . . 481 

xli. The State Executive ...... 498 

xlii. The State Judiciary ...... 507 

xliii. State Finance. 518 

xliv. The Working of State Governments . . . 534 

Note on Recent Tendencies of Legislation . 554 

xlv. Remedies for the Faults of State Governments . 555 

xlvi. State Politics . . . . . . . .571 

Note on Developments in State Government . 584 

xlvii. The Territories. 585 

xlviii. Local Government. 596 

xlix. Observations on Local Government . . . 617 

l. The Government of Cities ..... 628 





CONTENTS 


xv 


CHAP. PAGE 

Li. The Working of City Governments .... 640 
lii. An American View of Municipal Government in the 

United States.656 


APPENDIX 

On Constitutional Conventions.681 

What the Federal Constitution owes to the Constitu¬ 


tions of the Several States.684 

Extracts from the Rules of the Senate .... 687 

Private Bills.688 

The Lobby . . . . . . . . . 691 

Constitution of the Confederate States, 1861-65 . . 696 

The Federal Constitution of Canada.697 

The Dartmouth College Case ...... 698 

Articles of Confederation, 1781-1788 . 700 

Constitution of the United States ..... 706 

Extracts from the Constitution of the State of Okla¬ 
homa .718 

Extracts from the Constitution of California . . . 742 







LIST OF PRESIDENTS 


1789-1793 

1793-1797 

1797-1801 

1801-1805 

1805-1809 

1809-1813 

1813-1817 

1817-1821 

1821-1825 

1825-1829 

1829-1833 

1833-1837 

1837-1841 

1841-1845 

1845-1849 

1849-1853 

1853-1857 

1857-1861 

1861-1865 

1865-1869 

1869-1873 

1873-1877 

1877-1881 

1881-1885 

1885-1889 

1889-1893 

1893-1897 

1897-1901 

1901-1905 

1905-1909 

1909-1913 

1913- 


George Washington. 

Re-elected. 

John Adams. 

Thomas Jefferson. 

Re-elected. 

James Madison. 

Re-elected. 

James Monroe. 

Re-elected. * 

John Quincy Adams. 

Andrew Jackson. 

Re-elected. 

Martin van Buren. 

William Henry Harrison (died 1841) c 
John Tyler. 

James Knox Polk. 

Zachary Taylor (died 1850). 

Millard Fillmore. 

Franklin Pierce. 

James Buchanan. 

Abraham Lincoln. 

Re-elected (died 1865). 

Andrew Johnson. 

Ulysses S. Grant. 

Re-elected. . 

Rutherford Birchard Hayes. 

James Abram Garfield (died 1881). 

Chester A. Arthur. 

(Stephen) Grover Cleveland. 
Benjamin Harrison. 

Grover Cleveland. 

William McKinley. 

William McKinley (died 1901). 

Theodore Roosevelt. 

Theodore Roosevelt. 

William Howard Taft. 

Woodrow Wilson. 


xvi 


Dates of some Remarkable Events in the History of 
the North American Colonies and United States 

1606 First Charter of Virginia. 

1607 First Settlement in Virginia. 

1620 First Settlement in Massachusetts. 

1664 Taking of New Amsterdam (New York). 

1759 Battle of Heights of Abraham and taking of Quebec. 

1775 Beginning of the Revolutionary War. 

1776 Declaration of Independence. 

1781 Formation of the Confederation. 

1783 Independence of United States recognized. 

1787 Constitutional Convention at Philadelphia. 

1788 The Constitution ratified by Nine States. 

1789 Beginning of the Federal Government. 

1793 Invention of the Cotton Gin. 

1803 Purchase of Louisiana from France. 

1812-14 War with England. 

1812-15 Disappearance of the Federalist Party. 

1819 Purchase of Florida from Spain. 

1819 Steamers begin to cross the Atlantic. 

1820 The Missouri Compromise. 

1828-32 Formation of the Whig Party. 

1830 First Passenger Railway opened. 

1840 National Nominating Conventions regularly established 

1844 First Electric Telegraph in operation. 

1845 Admission of Texas to the Union. 

1846-48 Mexican War and Cession of California. 

1852-56 Fall of the Whig Party. 

1854-56 Formation of the Republican Party. 

1857 Dred Scott Decision delivered. 

1861-65 War of Secession. 

1869 First Trans-Continental Railway completed. 

1877 Final withdrawal of Federal troops from the South. 

1879 Specie Payments resumed. 

1898 War with Spain: annexation of Hawaii. 

1899 Cession by Spain of Puerto Rico and the Philippine 

Islands. 

1904 Acquisition of the Canal Zone at the Isthmus of 
Panama. 


XVII 


AREA, POPULATION, AND DATE OF ADMISSION 
OF THE STATES 

The Thirteen Original States, in the order in which they 
Ratified the Constitution 


Ratified the Area in Population 

Constitution square miles (1910) 


Delaware . 


1787 

2,050 

202,322 

Pennsylvania 


1787 

45,215 

7,665,111 

New Jersey 


1787 

7,815 

2,537,167 

Georgia 


1788 

59,475 

2,609,121 

Connecticut 


1788 

4,990 

1,114,756 

Massachusetts . 


1788 

8,315 

3,366,416 

Maryland 


1788 

12,210 

1,295,346 

South Carolina . 


1788 

30,570 

1,515,400 

New Hampshire 


1788 

9,305 

430,572 

Virginia 


1788 

42,450 

2,061,612 

New York . 


1788 

49,170 

9,113,614 

North Carolina . 


1789 

52,250 

2,206,287 

Rhode Island 


1790 

1,250 

542,610 

States subsequently admitted, in the 

ORDER OF THEIR ADMISSION 

Vermont 


1791 

9,565 

355,956 

Kentucky . 


1792 

40,400 

2,289,905 

Tennessee . 


1796 

42,050 

2,184,789 

Ohio 


1802 

41,060 

4,767,121 

Louisiana . 


1812 

48,720 

1,656,388 

Indiana 


1816 

36,350 

2,700,876 

Mississippi 


1817 

46,810 

1,797,114 

Illinois 


1818 

56,650 

5,638,591 

Alabama 


1819 

52,250 

2,138,093 

Maine 


1820 

33,040 

742,371 

Missouri 


1821 

xviii 

69,415 

3,293,335 







AREA, POPULATION, ETC. xix 


Arkansas 



1836 

Area in 

SQUARE MILES 

53,850 

Population 

(1910) 

1,574,449 

Michigan . 



1837 

58,915 

2,810,173 

Florida 



1845 

58,680 

752,619 

Texas 



1845 ■ 

265,780 

3,896,514 

Iowa 



1846 

56,025 

2,224,771 

Wisconsin . 



1848 

56,040 

2,333,860 

California . 



1850 

158,360 

2,377,549 

Minnesota . 



1858 

83,365 

2,075,708 

Oregon 



1859 

96,030 

672,765 

Kansas 



1861 

82,080 

1,690,949 

W. Virginia 



1863 

24,780 

1,221,119 

Nevada 



1864 

110,700 

81,875 

Nebraska . 



1867 

77,510 

1,192,214 

Colorado . 



1876 

103,925 

799,024 

N. Dakota 



1889 

70,795 

577,056 

S. Dakota 



1889. 

77,650 

583,888 

Montana . 



1889 

146,080 

376,053 

Washington 



1889 

69,180 

1,141,990 

Wyoming 



1890 

97,890 

145,965 

Idaho 



1890 

84,800 

325,954 

Utah . 



1895-6 

84,970 

373,351 

Oklahoma. 



1907 

70,057 

1,657,155 

Arizona 



1911 

113,020 

204,354 

New Mexico 


. 

1911 

122,580 

327,301 


TERRITORIES, ETC. 



Area 

Population in 1910 

Hawaiian Islands 

6,449 

191,909 

Alaska 

. 590,884 

64,356 

District of Columbia . 

70 

331,069 

Philippine Islands 1 

. 127,853 

7,635,426 

Porto Rico . 

3,435 

1,118,012 


1 According to the census taken in 1903 under the direction of the War 
Department. 







CHAPTER 1 


INTRODUCTORY 

“What do you think of our institutions ?” is the question 
addressed to the European traveller in the United States by 
every chance acquaintance. The traveller finds the question 
natural, for if he be an observant man his own mind is full of 
these institutions. But he asks himself why it should be in 
America only that he is so interrogated. In England one does 
not inquire from foreigners, nor even from Americans, their 
views on the English laws and government; nor does the Eng¬ 
lishman on the Continent find Frenchmen or Germans or Italians 
anxious to have his judgment on their politics. Presently the 
reason of the difference appears. The institutions of the United 
States are deemed by inhabitants and admitted by strangers to be 
a matter of more general interest than those of the not less famous 
nations of the Old World. They are, or are supposed to be, insti¬ 
tutions of a new type. They form, or are supposed to form, 
a symmetrical whole, capable of being studied and judged all 
together more profitably than the less perfectly harmonized 
institutions of older countries. They represent an experiment 
in the rule of the multitude, tried on a scale unprecedentedly vast, 
and the results of which every one is concerned to watch. And 
yet they are something more than an experiment, for they are 
believed to disclose and display the type of institutions towards 
which, as by a law of fate, the rest of civilized mankind are forced 
to move, some with swifter, others with slower, but all with 
unresting feet. 

When our traveller returns home he is again interrogated by 
the more intelligently curious of his friends. But what now 
strikes him is the inaptness of, their questions. Thoughtful 
Europeans have begun to realize, whether with satisfaction or 
regret, the enormous and daily-increasing influence of the 
United States, and the splendour of the part reserved for them 
in the development of civilization. But such men, unless they 

B 1 


2 


INTRODUCTORY 


CHAP. I 


have themselves crossed the Atlantic, have seldom either exact 
or correct ideas regarding the phenomena of the New World. 
The social and political experiments of America constantly 
cited in Europe both as patterns and as warnings are hardly ever 
cited with due knowledge of the facts, much less with compre¬ 
hension of what they teach ; and where premises are misunder¬ 
stood inferences must be unsound. 

It is such a feeling as this, a sense of the immense curiosity 
of Europe regarding the social and political life of America, and 
of the incomparable significance of American experience, that 
has led and will lead so many travellers to record their impres¬ 
sions of the Land of the Future. Yet the very abundance of 
descriptions in existence seems to require the author of another 
to justify himself for adding it to the list. 

I might plead that America changes so fast that every few 
years a new crop of books is needed to describe the new face 
which things have put on, the new problems that have appeared, 
the new ideas germinating among her people, the new and unex¬ 
pected developments for evil as well as for good of which her 
established institutions have been found capable. I might 
observe that a new generation grows up every few years in Europe, 
which does not read the older books, because they are old, but 
may desire to read a new one. And if a further reason is asked 
for, let it be found in this, that during the last fifty years no 
author has proposed to himself the aim of portraying the whole 
political system of the country in its practice as well as its theory, 
of explaining not only the National Government but the State 
Governments, not only the Constitution but the party system, 
not only the party system but the ideas, temper, habits of the 
sovereign people. Much that is valuable has been written on 
particular parts or aspects of the subject, but no one seems to 
have tried to deal with it as a whole; not to add that some of 
the ablest writers have been either advocates, often professed 
advocates, or detractors of democracy. 

To present such a general view of the United States both as 
a Government and as a Nation is the aim of the present book. 
But in seeking to be comprehensive it does not attempt to be 
exhaustive. The effort to cover the whole ground with equal 
minuteness, which a penetrating critic — the late Karl Hille- 
brand — remarked upon as a characteristic fault of English 
writers, is to be avoided not merely because it wearies a reader, 



CHAP. I 


INTRODUCTORY 


3 


but because it leads the writer to descant as fully upon matters 
he knows imperfectly as upon those which his own tastes and 
knowledge qualify him to deal with. I shall endeavour to omit 
nothing which seems needed to make the political life and the 
national character and tendencies of the Americans intelligible 
to Europeans, and with this view shall touch upon some topics 
only distantly connected with government or politics. But 
there are also many topics, perhaps no more remote from the 
main subject, which I shall pass lightly over, either because they 
have been sufficiently handled by previous writers, or because 
I have no such minute acquaintance with them as would make 
my observations profitable. For instance, the common-school 
system of the United States has been so frequently and fully 
described in many easily accessible books that an account of it 
will not be expected from me. But American universities have 
been generally neglected by European observers, and may there¬ 
fore properly claim some pages. The statistics of manufactures, 
agriculture, and commerce, the systems of railway finance and 
railway management, are full of interest, but they would need so 
much space to be properly set forth and commented on that it 
would be impossible to bring them within the present volumes, 
even had I the special skill and knowledge needed to distil from 
rows of figures the refined spirit of instruction. Moreover, 
although an account of these facts might be made to illustrate 
the features of American civilization, it is not necessary to a com¬ 
prehension of American character. Observations on the state 
of literature and religion are necessary, and I have therefore 
endeavoured to convey some idea of the literary tastes and the 
religious habits of the people, and of the part which these play 
in forming and colouring the whole life of the country. 

The book which it might seem natural for me to take as a 
model is the Democracy in America of Alexis de Tocqueville. 
It would indeed, apart from the danger of provoking a com¬ 
parison with such an admirable master of style, have been an 
interesting and useful task to tread in his steps, and seek to 
do for the United States of 1888, with their sixty millions of 
people, what he did for the fifteen millions of 1832. But what 
I have actually tried to accomplish is something different, for I 
have conceived the subject upon quite other lines. To Tocque¬ 
ville America was primarily a democracy, the ideal democracy, 
fraught with lessons for Europe, and above all for his own France. 



4 


INTRODUCTORY 


CHAP. I 


What he has given us is not so much a description of the country 
and people as a treatise, full of fine observation and elevated 
thinking, upon democracy, a treatise whose conclusions are 
illustrated from America, but are founded, not so much on an 
analysis of American phenomena, as on general and somewhat 
speculative views of democracy which the circumstances of 
France had suggested. Democratic government seems to me, 
with all deference to his high authority, a cause not so potent 
in the moral and social sphere as he deemed it; and my object 
has been less to discuss its merits than to paint the institutions 
and people of America as they are, tracing what is peculiar in 
them not merely to the sovereignty of the masses, but also to the 
history and traditions of the race, to its fundamental ideas, to its 
material environment. I have striven to avoid the temptations 
of the deductive method, and to present simply the facts of the 
case, arranging and connecting them as best I can, but letting 
them speak for themselves rather than pressing upon the reader 
my own conclusions. The longer any one studies a vast subject, 
the more cautious in inference does he become. When I first 
visited America in the year 1870,1 brought home a swarm of bold 
generalizations. Half of them were thrown overboard after a 
second visit in 1881. Of the half that remained, some were 
dropped into the Atlantic when I returned ^ross it after a third 
visit in 1883-84 : and although the two later journeys gave birth 
to some new views, these views are fewer and more discreetly 
cautious than their departed sisters of 1870. I can honestly say 
that I shall be better pleased if readers of a philosophic turn find 
in this book matter on which they feel they can safely build 
theories for themselves, than if they take from it theories ready 
made. 

To have dealt with the subject historically would have been 
profitable as well as pleasant, for the nature of institutions is 
best understood when their growth has been traced and illustra¬ 
tions adduced of their actual working. If I have made only 
a sparing use of this method, it has been from no want of love 
for it, but because a historical treatment would have seldom been 
compatible with my chief aim, that of presenting, within 
reasonable compass, a full and clear view of the facts of to-day. 
American history, of which Europeans know scarcely anything, 
may be wanting in colour and romance when compared with the 
annals of the great states of the Old World ; but it is eminently 




CHAP. I 


INTRODUCTORY 


5 


rich in political instruction. I hope that my American readers, 
who, if I am not mistaken, know the history of their country 
better than the English know that of England, will not suppose 
that I have ignored this instruction, but will allow for the omis¬ 
sions rendered necessary by the magnitude of the subject which 
I am trying to compress into two volumes. Similar reasons com¬ 
pel me to deal succinctly with the legal aspects of the Consti¬ 
tution ; but the lay reader may possibly deem this brevity a 
merit. 

Even when limited by the exclusion of history and law, the 
subject remains so vast and complex as to make needful some 
explanation of the conception I have formed of it, and of the 
plan upon which the book has been constructed. 

_ Thera are three main things that one wishes to know about 
a national commonwealth, viz. its framework and constitutional 
machinery, the methods by which it is worked, the forces which 
move it and direct its course. It is natural to begin with the 
first of these. Accordingly, I begin with the government; and as 
the powers of government are two-fold, being vested partly in 
the National or Federal authorities and partly in the States, I 
begin with the National government, whose structure presents 
less difficulty to European minds, because it resembles the Na¬ 
tional government'm each of their own countries. Part I. there¬ 
fore contains an account of the several Federal authorities, 
the President, Congress, the Courts of Law. It describes the 
relations of the National or central power to the several States. 
It discusses the nature of the Constitution as a fundamental 
supreme law, and shows how this stable and rigid instrument 
has been in a few points expressly, in many others tacitly and 
half-unconsciously modified. 

Part II. deals similarly with the State Governments, exam¬ 
ining the constitutions that have established them, the authori¬ 
ties which administer them, the practical working of their legis¬ 
lative bodies. And as local government is a matter of State 
regulation, there is also given some account of the systems of 
rural and city government which have been created in the 
various States, and which have, rural government for its merits 
and city government for its faults, become the theme of copious 
discussion among students of American institutions. 

(Part III.) The whole machinery, both of national and of 
State governments, is worked by the political parties. Parties 





6 


INTRODUCTORY 


CHAP. I 


have been organized far more elaborately in the United States 
than anywhere else in the world, and have passed more completely 
under the control of a professional class. The party organiza¬ 
tions in fact form a second body of political machinery, existing 
side by side with that of the legally constituted government, 
and scarcely less complicated. Politics, considered not as the 
science of government, but as the art of winning elections and 
securing office, has reached in the United States a development 
surpassing in elaborateness that of Britain or France as much as 
the methods of those countries surpass the methods of Servia or 
Roumania. Part III. contains a sketch of this party system, and 
of the men who “run” it, topics which deserve and would repay 
a fuller examination than they have yet received even in America, 
or than my limits permit me to bestow. 

(Part IV.) The parties, however, are not the ultimate force in 
the conduct of affairs. Behind and above them stands the people. 
Public opinion, that is the mind and conscience of the whole 
nation, is the opinion of persons who are included in the parties, 
for the parties taken together are the nation; and the parties, 
each claiming to be its true exponent, seek to use it for their 
purposes. Yet it stands above the parties, being cooler and 
larger minded than they are; it awes party leaders and holds 
in check party organizations. No one openly ventures to resist 
it. It determines the direction and the character of national 
policy. It is the product of a greater number of minds than in 
any other country, and it is more indisputably sovereign. It 
is the central point of the whole American polity. To describe 
it, that is, to sketch the leading political ideas, habits, and ten¬ 
dencies of the American people, and show how they express 
themselves in action, is the most difficult and also the most vital 
part of my task; and to this task the twelve chapters of Part 
IV. are devoted. 

(Part V.) As the descriptions given and propositions advanced 
in treating of the party system and of public opinion are neces¬ 
sarily general, they seem to need illustration by instances drawn 
from recent American history. I collect some such instances in 
Part V., and place there a discussion of several political questions 
which lie outside party politics, together with some chapters in 
which the attempt is made to estimate the strength and weakness 
of democratic government as it exists in the United States, and 
to compare the phenomena which it actually shows with those 




CHAP. I 


INTRODUCTORY 


7 


which European speculation has attributed to democracy in 
general. 

(Part VI.) At this point the properly political sections of the 
book end. But there are certain non-political institutions, cer¬ 
tain aspects of society, certain intellectual or spiritual forces, 
which count for so much in the total life of the country, in the 
total impression which it makes and the hopes for the future which 
it raises, that they cannot be left unnoticed. These, or rather 
such of them as are of most general interest, and have been least 
understood in Europe, will be found briefly treated in Part VI. 
In the view which I take of them, they are all germane, though 
not all equally germane, to the main subject of the book, which is 
the character, temper, and tendencies of the American nation as 
they are expressed, primarily in political and social institutions, 
secondarily in literature and manners. 

This plan involves some repetition. But an author who finds 
himself obliged to choose between repetition and obscurity 
ought not to doubt as to his choice. Whenever it has been 
necessary to trace a phenomenon to its source, or to explain the 
connection between several phenomena, I have not hesitated, 
knowing that one must not expect a reader to carry in his mind 
all that has been told already, to re-state a material fact, or re¬ 
enforce a view which gives to the facts what I conceive to be their 
true significance. 

It may be thought that a subject of this great compass ought, 
if undertaken at all, to be undertaken by a native American. 
No native American has, however, undertaken it. Such a 
writer would doubtless have many advantages over a stranger. 
Yet there are two advantages which a stranger, or at least a 
stranger who is also an Englishman, with some practical know¬ 
ledge of English politics and English law, may hope to secure. 
He is struck by certain things which a native does not think of 
explaining, because they are too obvious; and whose influence 
on politics or society, one to whom they seem part of the order 
of nature forgets to estimate. And the stranger finds it easier to 
maintain a position of detachment, detachment not only from 
party prejudice, but from those prepossessions in favour of per¬ 
sons, groups, constitutional dogmas, national pretensions, which 
a citizen can scarcely escape except by falling into that attitude 
of impartial cynicism which sours and perverts the historical 
mind as much as prejudice itself. He who regards a wide land- 




8 


INTRODUCTORY 


CHAP. I 


scape from a distant height sees its details imperfectly, and must 
unfold his map in order to make out where each village lies, and 
how the roads run from point to point. But he catches the true 
perspective of things better than if he were standing among them. 
The great features of the landscape, the valleys, slopes, and 
mountains, appear in their relative proportion : he can estimate 
the height of the peaks and the breadth of the plains. So one 
who writes of a country not his own may turn his want of famil¬ 
iarity with details to good account if he fixes his mind strenuously 
on the main characteristics of the people and their institutions, 
while not forgetting to fill up gaps in his knowledge by frequent 
reference to native authorities. My own plan has been first to 
write down what struck me as the salient and dominant facts, 
and then to test, by consulting American friends and by a fur¬ 
ther study of American books, the views which I had reached. 

To be non-partisan, as I trust to have been, in describing the 
politics of the United States, is not difficult for a European, 
especially if he has the good fortune to have intimate friends in 
both the great American parties. To feel and show no bias in 
those graver and more sharply accentuated issues which divide 
men in Europe, the issues between absolutism, oligarchy, and 
democracy; between strongly unified governments and the 
policy of decentralization, this is a harder task, yet a not less 
imperative duty. This much I can say, that no fact has been 
either stated or suppressed, and no opinion put forward, with 
the purpose of serving any English party-doctrine or party-pol¬ 
icy, or in any way furnishing arguments for use in any English 
controversy. The admirers and the censors of popular govern¬ 
ment are equally likely to find in the present treatise materials 
suited to their wishes; and in many cases, if I may judge from 
what has befallen some of my predecessors, they will draw from 
these materials conclusions never intended by the author. 

Few things are more difficult than to use aright arguments 
founded on the political experience of other countries. As the 
chief practical use of history is to deliver us from plausible 
historical analogies, so a comprehension of the institutions of 
other nations enables us to expose sometimes the ill-grounded 
hopes, sometimes the empty fears, which loose reports about 
those nations generate. Direct inferences from the success or 
failure of a particular constitutional arrangement or political 
usage in another country are rarely sound, because the condi- 



CHAP. I 


INTRODUCTORY 


9 


tions differ in so many respects that there can be no certainty 
that what flourishes or languishes under other skies and in an¬ 
other soil will likewise flourish or languish in our own. Many an 
American institution would bear different fruit if transplanted 
to England, as there is hardly an English institution which has 
not undergone, like the plants and animals of the Old World, 
some change in America. The examination and appraisement 
of the institutions of the United States is no doubt full of instruc¬ 
tion for Europe, full of encouragement, full of warning ; but 
its chief value lies in what may be called the laws of political 
biology which it reveals, in the new illustrations and enforce¬ 
ments it supplies of general truths in social and political science, 
truths some of which were perceived long ago by Plato and 
Aristotle, but might have been forgotten had not America 
poured a stream of new light upon them. Now and then we 
may directly claim transatlantic experience as accrediting or 
discrediting some specific constitutional device or the policy of 
some enactment. But even in these cases he who desires to 
rely on the results shown in America must first satisfy himself 
that there is such a parity of conditions and surroundings in 
respect to the particular matter as justifies him in reasoning 
directly from ascertained results there to probable results in 
his own country. 

It is possible that these pages, or at least those of them which 
describe the party system, may produce on European readers 
an impression which I neither intend nor desire. They 
may set before him a picture with fewer lights and deeper 
shadows than I have wished it to contain. Many years ago 
I travelled in Iceland with two friends. We crossed the great 
Desert by a seldom trodden track, encountering, during two 
months of late autumn, rains, tempests, snow-storms, and other 
hardships too numerous to recount. But the scenery was so 
grand and solemn, the fife so novel, the character of the people 
so attractive, the historic and poetic traditions so inspiring, that 
we returned full of delight with the marvellous isle. When 
we expressed this enchantment to our English friends, we were 
questioned about the conditions of travel, and forced to admit 
that we had been frozen and starved, that we had sought sleep 
in swamps or on rocks, that the Icelanders lived in huts scat¬ 
tered through a wilderness, with none of the luxuries and few 
even of the comforts of life. Our friends passed over the record 



10 


INTRODUCTORY 


CHAP. I 


of impressions to dwell on the record of physical experiences, and 
conceived a notion of the island totally different from that 
which we had meant to convey. We perceived too late how much 
easier it is to state tangible facts than to communicate impres¬ 
sions. If I may attempt to apply the analogy to the United 
States and their people, I will say that they make on the visitor 
an impression so strong, so deep, so fascinating, so inwoven with 
a hundred threads of imagination and emotion, that he cannot 
hope to reproduce it in words, and to pass it on undiluted to 
other minds. With the broad facts of politics it is otherwise. 
These a traveller can easily set forth, and is bound in honesty to 
set forth, knowing that in doing so he must state much that is 
sordid, much that will provoke unfavourable comment. The 
European reader grasps these tangible facts, and, judging them 
as though they existed under European conditions, draws from 
them conclusions disparaging to the country and the people. 
What he probably fails to do, because this is what the writer 
is most likely to fail in enabling him to do, is to realize the 
existence in the American people of a reserve of force and pa¬ 
triotism more than sufficient to sweep away all the evils which 
are now tolerated, and to make the politics of the country worthy 
of its material grandeur and of the private virtues of its in¬ 
habitants. America excites an admiration which must be felt 
upon the spot to be understood. The hopefulness of her people 
communicates itself to one who moves among them, and makes 
him perceive that the graver faults of politics may be far less 
dangerous there than they would be in Europe. A hundred 
times in writing this book have I been disheartened by the facts 
I was stating: a hundred times has the recollection of the 
abounding strength and vitality of the nation chased away these 
tremors. 

There are other risks to which such a book as this is neces¬ 
sarily exposed. There is the risk of supposing that to be gen¬ 
erally true which the writer has himself seen or been told, and 
the risk of assuming that what is now generally true is likely 
to continue so. Against the former of these dangers he who 
is forewarned is forearmed : as to the latter I can but say that 
whenever I have sought to trace a phenomenon to its causes I 
have also sought to inquire whether these causes are likely to 
be permanent, a question which it is well to ask even when no 
answer can be given. I have attributed less to the influence 



CHAP. I 


INTRODUCTORY 


11 


of democracy than most of my predecessors have done, believ¬ 
ing that explanations drawn from a form of government, being 
easy and obvious, ought to be cautiously employed. Some one 
has said that the end of philosophy is to diminish the number 
of causes, as the aim of chemistry is to reduce that of the ele¬ 
mental substances. But it is an end not to be hastily pursued. 
A close analysis of social and political phenomena often shows 
that causes are more complex than had at first appeared, and 
that that which had been deemed the main cause is active only 
because some inconspicuous, but not less important, condition 
is also present. The inquisition of the forces which move 
society is a high matter ; and even where certainty is unattain¬ 
able it is some service to science to have determined the facts 
and correctly stated the problems, as Aristotle remarked long 
ago that the first step in investigation is to ask the right ques¬ 
tions. 

I have, however, dwelt long enough upon the perils of the 
voyage : it is now time to put to sea. Let us begin with a sur¬ 
vey of the national government, examining its nature and 
describing the authorities which compose it. 






PAET I 


THE NATIONAL GOVERNMENT 














CHAPTER II 


THE NATION AND THE STATES 

Some years ago the American Protestant Episcopal Church 
was occupied at its triennial Convention in revising its liturgy. 
It was thought desirable to introduce among the short sentence 
prayers a prayer for the whole people; and an eminent New 
England divine proposed the words “O Lord, bless our nation.” 
Accepted one afternoon on the spur of the moment, the sen¬ 
tence was brought up next day for reconsideration, when so 
many objections were raised by the laity to the word “nation,” 
as importing too definite a recognition of national unity, that 
it was dropped, and instead there were adopted the words “0 
Lord, bless these United States.” 

To Europeans who are struck by the patriotism and demon¬ 
strative national pride of their transatlantic visitors, this fear 
of admitting that the American people constitute a nation 
seems extraordinary. But it is only the expression on its sen¬ 
timental side of the most striking and pervading characteristic 
of the political system of the country, the existence of a double 
government, a double allegiance, a double patriotism. America 
— I call it America (leaving out of sight South and Central 
America, Canada, and Mexico), in order to avoid using at this 
stage the term United States — America is a Commonwealth of 
commonwealths, a Republic of republics, a State which, while 
one, is nevertheless composed of other States even more essen¬ 
tial to its existence than it is to theirs. 

This is a point of so much consequence, and so apt to be mis¬ 
apprehended by Europeans, that a few sentences may be given 
to it. 

When within a large political community smaller communi¬ 
ties are found existing, the relation of the smaller to the larger 
usually appears in one or other of the two following forms. 
One form is that of a League, in which a number of political 
bodies, be they monarchies or republics, are bound together so 

15 


16 


THE NATIONAL GOVERNMENT 


PART I 


as to constitute for certain purposes, and especially for the pur¬ 
pose of common defence, a single body. The members of such 
a composite body or league are not individual men but com¬ 
munities. It exists only as an aggregate of communities, and 
will therefore vanish so soon as the communities which com¬ 
pose it separate themselves from one another. Moreover it 
deals with and acts upon these communities only. With the 
individual citizen it has nothing to do, no right of taxing him, 
or judging him, or making laws for him, for in all these matters 
it is to his own community that the allegiance of the citizen is 
due. A familiar instance of this form is to be found in the 
Germanic Confederation as it existed from 1815 till 1866. The 
Hanseatic League in mediaeval Germany, the Swiss Confedera¬ 
tion down till the present century, are other examples. 

In the second form, the smaller communities are mere sub¬ 
divisions of that greater one which we call the Nation. They 
have been created, or at any rate they exist, for administrative 
purposes only. Such powers as they possess are powers dele¬ 
gated by the nation, and can be overridden by its will. The 
nation acts directly by its own officers, not merely on the com¬ 
munities, but upon every single citizen ; and the nation, because 
it is independent of these communities, would continue to exist 
were they all to disappear. Examples of such minor commu¬ 
nities may be found in the departments of modern France and 
the counties of modern England. Some of the English counties 
were at one time, like Kent or Dorset, independent kingdoms 
or tribal districts; some, like Bedfordshire, were artificial 
divisions from the first. All are now merely local administra¬ 
tive areas, the powers of whose local authorities have been 
delegated from the national government of England. The 
national government does not stand by virtue of them, does 
not need them. They might all be abolished or turned into 
wholly different communities without seriously affecting its 
structure. 

The American Federal Republic corresponds to neither of 
these two forms, but may be said to stand between them. Its 
central or national government is not a mere league, for it does 
not wholly depend on the component communities which we 
call the States. It is itself a commonwealth as well as a union 
of commonwealths, because it claims directly the obedience of 
every citizen, and acts immediately upon him through its courts 



CHAP. II 


THE NATION AND THE STATES 


17 


and executive officers. Still less are its minor communities 
the States, mere subdivisions of the Union, mere creatures of 
the national government, like the counties of England or the 
departments of France. They have over their citizens an 
authority which is their own, and not delegated by the central 
government. They have not been called into being by that 
government. They — that is, the older ones among them — 
existed before it. They could exist without it. 

The central or national government and the State govern¬ 
ments may be compared to a large building and a set of smaller 
buildings standing on the same ground, yet distinct from each 
other. It is a combination sometimes seen where a great church 
has been erected over more ancient homes of worship. ^^First 
the soil is covered by a number of small shrines and chapels, 
built at different times and in different styles of architecture, 
each complete in itself. Then over them and including them 
all in its spacious fabric there is reared a new pile with its own 
loftier roof, its own walls, which may perhaps rest on and incor¬ 
porate the walls of the older shrines, its own internal plan. 1 
The identity of the earlier buildings has, however, not been 
obliterated; and if the later and larger structure were to dis¬ 
appear, a little repair would enable them to keep out wind and 
weather, and be again what they once were, distinct and sepa¬ 
rate edifices. —So the American States are. now all inside the 
Union, and have all become subordinate to it. Yet the Union 
is more than an aggregate of States, and the States are more 
than parts of the Union. It might be destroyed, and they, 
adding some further attributes of power to those they now possess, 
might survive as independent self-governing communities. 

This is the cause of that immense complexity which startles 
and at first bewilders the student of American institutions, a 
complexity which makes American history and current Ameri¬ 
can politics difficult to the European, who finds in them phe¬ 
nomena to which his own experience supplies no parallel. There 
are two loyalties, two patriotisms; and the lesser patriot¬ 
ism, as the incident in the Episcopal Convention shows, is jeal¬ 
ous of the greater. There are two governments, covering the 

1 1 do not profess to indicate any one building which exactly corresponds to 
what I have attempted to describe, but there are (besides the Church of the 
Holy Sepulchre at Jerusalem) several both in Italy and in Egypt that seem to 
justify the simile. 




18 


THE NATIONAL GOVERNMENT 


PART I 


same ground, commanding, with equally direct authority, the 
obedience of the same citizen. 

The casual reader of American political intelligence in Euro¬ 
pean newspapers is not struck by this phenomenon, because 
State politics and State affairs generally are seldom noticed in 
Europe. Even the traveller who visits America does not 
realize its importance, because the things that meet his eye are 
superficially similar all over the continent, and that which 
Europeans call the machinery of government is in America con¬ 
spicuous chiefly by its absence. But a due comprehension of 
this double organization is the first and indispensable step to 
the comprehension of American institutions : as the elaborate 
devices whereby the two systems of government are kept from 
clashing are the most curious subject of study which those in¬ 
stitutions present. 

How did so complex a system arise, and what influences 
have moulded it into its present form? This is a question 
which cannot be answered without a few words of historical 
retrospect. I am anxious not to stray far into history, because 
the task of describing American institutions as they now exist 
is more than sufficiently heavy for one writer and one book. But 
a brief and plain outline of the events which gave birth to the 
Federal system in America, and which have nurtured national 
feeling without extinguishing State feeling, seems the most 
natural introduction to an account of the present Constitution, 
and may dispense with the need for subsequent explanations 
and digressions. 



CHAPTER III 


THE ORIGIN OF THE CONSTITUTION 

When in the reign of George III. troubles arose between 
England and her North American colonists, there existed along 
the eastern coast of the Atlantic thirteen little communities, the 
largest of which (Virginia) had not more than half a million of 
free people, and the total population of which did not reach 
three millions. All owned allegiance to the British Crown; all, 
except Connecticut and Rhode Island, received their governors 
from the Crown ; 1 in all, causes were carried by appeal from the 
colonial courts to the English Privy Council. Acts of the 
British Parliament ran there, as they now run in the British 
colonies, whenever expressed to have that effect, and could 
over-rule such laws as the colonies might make. But practi¬ 
cally each colony was a self-governing commonwealth, left to 
manage its own affairs with scarcely any interference from home. 
Each had its legislature, its own statutes adding to or modify¬ 
ing the English common law, its local corporate life and traditions, 
with no small local pride in its own history and institutions, 
superadded to the pride of forming part of the English race 
and the great free British realm. Between the various colonies 
there was no other political connection than that which arose 
from their all belonging to this race and realm, so that the 
inhabitants of each enjoyed in every one of the others the rights 
and privileges of British subjects. 

When the oppressive measures of the home government 
roused the colonies, they naturally sought to organize their 
resistance in common. 2 Singly they would have been an easy 
prey, for it was long doubtful whether even in combination 

1 In Maryland, Pennsylvania, and Delaware, however, the governor was, 
during the larger part of the colonial period, appointed by the “Proprietor.” 

2 There had been a congress of delegates from seven colonies at Albany in 
1754 to deliberate on measures relative to the impending war with France, but 
this, of course, took place with the sanction of the mother country, and was 
a purely temporary measure. 


19 


20 


THE NATIONAL GOVERNMENT 


PART 


they could make head against regular armies. A congress of 
delegates from nine colonies held at New York in 1765 was 
followed by another at Philadelphia in 1774, at which twelve 
were represented, which called itself Continental (for the name 
American had not yet become established), 1 and spoke in the 
name of “the good people of these colonies/’ the first assertion 
of a sort of national unity among the English of America. The 
second congress, and the third which met in 1775 and in which 
thereafter all the colonies were represented, was a merely revo¬ 
lutionary body, called into existence by the war with the mother 
country. But in 1776 it declared the independence of the colonies, 
and in 1777 it gave itself a new legal character by framing the 
“Articles of Confederation and Perpetual Union,” 2 whereby 
the thirteen States (as they then called themselves) entered into 
a “firm league of friendship” with each other, offensive and de¬ 
fensive, while declaring that “each State retains its sovereignty, 
freedom, and independence, and every power, jurisdiction, and 
right which is not by this Confederation expressly delegated to 
the United States in Congress assembled.” 

This Confederation, which was not ratified by all the States 
till 1781, was rather a league than a national government, for 
it possessed no central authority except an assembly in which 
every State, the largest and the smallest alike, had one vote, and 
this assembly had no jurisdiction over the individual citizens. 
There was no Federal executive, no proper Federal judiciary, 
no means of raising money except by the contributions of the 
States, contributions which they were slow to render, no power 
of compelling the obedience to Congress either of States or of 
individuals. The plan corresponded to the wishes of the colonists, 
who did not yet deem themselves a nation, and who in their 
struggle against the power of the British Crown were resolved 
to set over themselves no other power, not even one of their own 
choosing. But it worked badly even while the struggle lasted, 
and after the immediate danger from England had been removed 
by the peace of 1783, it worked still worse, and was in fact, as 
Washington said, no better than anarchy. The States were 

1 Till the middle of last century the name “American” seems to have denoted 
the native Indians, as it does in Wesley’s hymn, “The dark Americans convert.” 
So Sir Thomas Browne writes, “As for sopition of reason and the diviner particle 
from drink, tho’ American religion approve, and Pagan piety of old hath prac¬ 
tised it, etc.” The War of Independence gave the word its present meaning. 

2 See these Articles in the Appendix at the end of this volume. 



chap, in THE ORIGIN OF THE CONSTITUTION 


21 


indifferent to Congress and their common concerns, so indifferent 
that it was found difficult to procure a quorum of States for 
weeks or even months after the day fixed for meeting. Congress 
was impotent, and commanded respect as little as obedience. 
Much distress prevailed in the trading States, and the crude 
attempts which some legislatures made to remedy the depres¬ 
sion by emitting inconvertible paper, by constituting other 
articles than the precious metals legal tender, and by impeding 
the recovery of debts, aggravated the evil, and in several in¬ 
stances led to seditious outbreaks. 1 The fortunes of the country 
seemed at a lower ebb than even during the war with England. 

Sad experience of their internal difficulties, and of the con¬ 
tempt with which foreign governments treated them, at last pro¬ 
duced a feeling that some firmer and closer union was needed. 
A convention of delegates from five States met at Annapolis in 
Maryland in 1786 to discuss methods of enabling Congress to 
regulate commerce, which suffered grievously from the varying 
and often burdensome regulations imposed by the several States. 
It drew up a report which condemned the existing state of things, 
declared that reforms were necessary, and suggested a further 
general convention in the following year to consider the condition 
of the Union and the needed amendments in its Constitution. 
Congress, to which the report had been presented, approved 
it, and recommended the States to send delegates to a con¬ 
vention, which should “ revise the Articles of Confederation, 
and report to Congress and the several legislatures such altera¬ 
tions and provisions therein as shall, when agreed to in Congress 
and confirmed by the States, render the Federal Constitution 
adequate to the exigencies of government and the preservation 
of the Union.” 

The Convention thus summoned met at Philadelphia on the 
14th May 1787, became competent to proceed to business on 
May 25th, when seven States were represented, and chose 
George Washington to preside. Delegates attended from every 
State but Rhode Island, and among these delegates was to be 

1 Rhode Island was the most conspicuous offender. This singular little 
commonwealth, whose land area is 1085 square miles (less than that of Ayrshire or 
Antrim), is of all the American States that which has furnished the most abun¬ 
dant analogies to the republics of antiquity, and which best deserves to have its 
annals treated of by a philosophic historian. The example of her disorders did 
much to bring the other States to adopt that Federal Constitution which she 
was herself the last to accept. 



22 


THE NATIONAL GOVERNMENT 


PART 1 


found nearly all the best intellect and the ripest political expe¬ 
rience the United States then contained. The instructions they 
had received limited their authority to the revision of the 
Articles of Confederation and the proposing to Congress and 
the State legislatures such improvements as were required 
therein . 1 But with admirable boldness, boldness doubly admi¬ 
rable in Englishmen and lawyers, the majority ultimately re¬ 
solved to disregard these restrictions, and to prepare a wholly 
new Constitution, to be considered and ratified neither by 
Congress nor by the State legislatures, but by the peoples of 
the several States. 

This famous assembly, which consisted of fifty-five delegates, 
thirty-nine of whom signed the Constitution which it drafted, 
sat nearly five months, and expended upon its work an amount 
of labour and thought commensurate with the magnitude of 
the task and the splendour of the result. The debates were 
secret, a proof of the confidence reposed in the members ; and 
it was well that they were secret, for criticism from without 
might have imperilled a work which seemed repeatedly on the 
point of breaking down, so great were the difficulties encoun¬ 
tered from the divergent sentiments and interests of different 
parts of the country, as well as of the larger and smaller States . 2 

1 It was strongly urged when the draft Constitution came up for ratification 
in the State Conventions that the Philadelphia Convention had no power to 
do more than amend the Articles of Confederation. To these objections Mr. 
Wilson, speaking in the Pennsylvania Convention, made answer as follows.: — 
“The business, we are told, which was intrusted to the late Convention was 
merely to amend the present Articles of Confederation. This observation has 
been frequently made, and has often brought to my mind a story that is re¬ 
lated of Mr. Pope, who it is well known was not a little deformed. It was 
customary for him to use this phrase, ‘God mend me,’ when any little accident 
happened. One evening a link boy was lighting him along, and coming to a 
gutter the boy jumped nimbly over it. Mr. Pope called to him to turn, adding 
‘ God mend me ! ’ The arch rogue, turning to light him, looked at him and re¬ 
peated ‘God mend you ! He would sooner make half a dozen new ones.’ This 
would apply to the present Confederation, for it would be easier to make an¬ 
other than to amend this.’’ — Elliot’s Debates, vol. ii. p. 472. 

2 Benjamin Franklin, who was one of the delegates from Pennsylvania (being 
then eighty-one years of age), was so much distressed at the difficulties which 
arose and the prospect of failure that he proposed that the Convention, as all 
human means of obtaining agreement seemed to be useless, should open its 
meetings with prayer. The suggestion, remarkable as coming from one so 
well known for his sceptical opinions, would have been adopted but for the 
fear that the outside public might thus learn how grave the position of affairs 
was. The original of Franklin’s proposition, written in his own still clear and 
firm hand, with his note stating that only three or four agreed with him, is 
preserved in the State Department at Washington, where may be also seen the 
draft of the Constitution with the signatures of the thirty-nine delegates. 




chap, hi THE ORIGIN OF THE CONSTITUTION 


23 


The records of the Convention were left in the hands of Wash¬ 
ington, who in 1796 deposited them in the State Department. 
In 1819 they were published by J. Q. Adams. In 1840 there 
appeared the very full and valuable notes of the discussions 
kept by James Madison (afterwards twice President), who had 
been one of the most useful members of the body. From these 
records and notes 1 the history of the Convention has been written. 

It is hard to-day, even for Americans, to realize hew enor¬ 
mous those difficulties were. The Convention had not only to 
create de novo , on the most slender basis of pre-existing national 
institutions, a national government for a widely scattered peo¬ 
ple, but they had in doing so to respect the fears and jealousies 
and apparently irreconcilable interests of thirteen separate 
commonwealths, to all of whose governments it was necessary 
to leave a sphere of action wide enough to satisfy a deep-rooted 
local sentiment, yet not so wide as to imperil national unity. 2 
Well might Hamilton say: “The establishment of a Constitu¬ 
tion, in time of profound peace, by the voluntary consent of a 
whole people, is a prodigy to the completion of which I look 
forward with trembling anxiety.” 3 And well might he quote 
the words of David Hume ( Essays; “The Rise of Arts and 
Sciences”) : “To balance a large State or society, whether 
monarchical or republican, on general laws, is a work of so 
great difficulty that no human genius, however comprehensive, 
is able by the mere dint of reason and reflection to effect it. 
The judgments of many must unite in the work; experience 
must guide their labour ; time must bring it to perfection ; and 


1 They are printed in the work called Elliot’s Debates, which also contains 
the extremely interesting debates in some of the State Conventions which rati¬ 
fied the Constitution. The most complete account is now to be -found in 
Records of the Federal Convention of 1787, published in 1911 by the Yale Uni¬ 
versity Press. For some remarks on Constitutional Conventions in general, see 
the note to this chapter at the end of this volume. 

2 The nearest parallels to such a Federal Union as that formed in 1789 were 
then to be found in the Achaean and Lycian Leagues, which, however, were not 
mere leagues, but federated nations. Both are referred to by the authors of 
the Federalist (see post), but their knowledge was evidently scanty. The acute¬ 
ness of James Wilson had perceived that the two famous confederations of 
modern Europe did not supply a model for America. He observed in the Penn¬ 
sylvania Convention of 1787 : “The Swiss cantons are connected only by al¬ 
liances. The United Netherlands are indeed an assemblage of societies ; but 
this assemblage constitutes no new one, and therefore it does not correspond 
with the full definition of a Confederate Republic.” — Elliot’s Debates, vol. ii. 
p. 422. The Swiss Confederation has now become a Republic at once Federal 
and national, resembling in most respects its American model. 

3 Federalist, No. lxxxv. 




24 


THE NATIONAL GOVERNMENT 


PART I 


the feeling of inconveniences must correct the mistakes which 
they inevitably fall into in their first trials and experiments.” 

It was even a disputable point whether the colonists were 
already a nation or only the raw material out of which a nation 
might be formed . 1 There were elements of unity, there were 
also elements of diversity. All spoke the same language. All, 
except a few descendants of Dutchmen and Swedes in New 
York and Delaware, some Germans in Pennsylvania, some 
children of French Huguenots in New England and the 
middle States, belonged to the same race . 2 All, except some 
Roman Catholics in Maryland, professed the Protestant religion. 
All were governed by the same English Common Law, and prized 
it not only as the bulwark which had sheltered their forefathers 
from the oppression of the Stuart kings, but as the basis of 
their more recent claims of right against the encroachments 
of George III. and his colonial officers. In ideas and habits of 
life there was less similarity, but all were republicans, manag¬ 
ing their affairs by elective legislatures, attached to local self- 
government, and animated by a common pride in their success¬ 
ful resistance to England, which they then hated with a true 
family hatred, a hatred to which her contemptuous treatment 
of them added a sting. 

On the other hand their geographical position made com¬ 
munication very difficult. The sea was stormy in winter; the 
roads were bad ; it took as long to travel by land from Charles¬ 
ton to Boston as to cross the ocean to Europe, nor was the 
journey less dangerous. The wealth of some States consisted 
in slaves, of others in shipping; while in others there was a 
population of small farmers, characteristically attached to old 
habits. . Manufactures had hardly begun to exist. The senti¬ 
ment of local independence showed itself in intense suspicion 
of any external authority; and most parts of the country were 
so thinly peopled that the inhabitants had lived practically 

1 Mr. Wilson said in the Pennsylvania Convention of 1787 : “By adopting 
this Constitution we shall become a nation ; we are not now one. We shall 
form a national character; we are now too dependent on others.” He pro¬ 
ceeds with a remarkable prediction of the influence which American freedom 
would exert upon the Old World. — Elliot’s Debates, vol. ii. p. 526. 

2 The Irish, a noticeable element in North Carolina and parts of Pennsyl¬ 
vania, Virginia, and New Hampshire, were not Catholic Celts but Scoto-Irish 
Presbyterians from Ulster, who*, animated by resentment at the wrongs and 
religious persecution they had suffered at home, had been among the foremost 
combatants in the Revolutionary War. 



chap, hi THE ORIGIN OF THE CONSTITUTION 


25 


without any government, and thought that in creating one they 
would be forging fetters for themselves. But while these 
diversities and jealousies made union difficult, two dangers 
were absent which have beset the framers of constitutions for 
other nations. There were no reactionary conspirators to be 
feared, for every one prized liberty and equality. There were 
no questions between classes, no animosities against rank and 
wealth, for rank and wealth did not exist. 

It was inevitable under such circumstances that the Consti¬ 
tution, while aiming at the establishment of a durable central 
power, should pay great regard to the existing centrifugal 
forces. It was and remains what its authors styled it, emi¬ 
nently an instrument of compromises; it is perhaps the most 
successful instance in history of what a judicious spirit of com¬ 
promise may effect. 1 Yet out of the points which it was for 
this reason obliged to leave unsettled there arose fierce con¬ 
troversies, which after two generations, when accumulated 
irritation and incurable misunderstanding had been added to 
the force of material interests, burst into flame in the War of 
Secession. 

The draft Constitution was submitted, as its last article pro¬ 
vided, to conventions of the several States (■ i.e . bodies specially 
chosen by the people 2 for the purpose) for ratification. It 
was to come into effect as soon as nine States had ratified, the 
effect of which would have been, in case the remaining States, 
or any of them, had rejected it, to leave such States standing 
alone in the world, since the old Confederation was of course 
superseded and annihilated. Fortunately all the States did 
eventually ratify the new Constitution, but two of the most 
important, Virginia and New York, 3 did not do so till the mid¬ 
dle of 1788, after nine others had already accepted it; and two, 
North Carolina and Rhode Island, at first refused, and only 

1 Hamilton observed of it in 1788: “The result of the deliberations of all 
collective bodies must necessarily be a compound as well of the errors and 
prejudices as of the good sense and wisdom of the individuals of whom they 
are composed. The compacts which are to embrace thirteen distinct States 
in a common bond of amity and union must as necessarily be a compromise 
of as many dissimilar interests and inclinations. How can perfection spring 
from such materials?” — Federalist, No. lxxxv. 

2 The suffrage was then a limited one, based on property. 

3 Virginia was then much the largest State (population in 1790, 747,610). 
New York was reckoned among the smaller States (population 340,120) but 
her central geographical position made her adhesion extremely important. 




26 


THE NATIONAL GOVERNMENT 


PART I 


consented to enter the new Union more than a year later, 
when the government it had created had already come into 
operation. 

(/There was a struggle everywhere over the adoption of the 
Constitution, a struggle presaging the birth of the two great 
parties that for many years divided the American people. The 
chief source of hostility was the belief that a strong central 
government endangered both the_rights of the States and the 
liberties of the individual citizen, freedom, it was declared, 
would perish, freedom rescued from George III. would perish 
at the hands of her own children. 1 Consolidation (for the word 
centralization had not yet been invented) would extinguish 
the State governments and the local institutions they protected. 
The feeling was very bitter, and in some States, notably in 
Massachusetts and New York, the majorities were dangerously 
narrow. Had the decision been left to what is now called “the 
voice of the people/’ that is, to the mass of the citizens all over 
the country, voting at the polls, the voice of the people would 
probably have pronounced against the Constitution, and this 
would have been still more likely if the question had been voted 
on everywhere upon the same day, seeing that several doubtful 
States were influenced by the approval which other States had 
already given. But the modern “ plebiscital ” method of taking 
the popular judgment had not been invented. The question was 
referred to conventions in the several States. The conventions 
were composed of able men, who listened to thoughtful arguments, 
and were themselves influenced by the authority of their leaders. 
/The counsels of the wise prevailed over the prepossessions of the 
multitude. Yet these counsels would hardly have prevailed 
but for a cause which is apt to be now overlooked. This was the 
dread of foreign powers. 2 The United States had at that time 


1 In the Massachusetts Convention of 1788 Mr. Nason delivered himself of 
the following pathetic appeal: ‘ ‘ And here, sir, I beg the indulgence of this 
honourable body to permit me to make a short apostrophe to Liberty. O Lib¬ 
erty, thou greatest good ! thou fairest property ! with thee I wish to live — 
with thee I wish to die ! Pardon me if I drop a tear on the peril to which she 
is exposed. I cannot, sir, see this highest of jewels tarnished — a jewel worth 
ten thousand worlds ; and shall we part with it so soon? Oh no.” — Elliot’s 
Debates , ii. 133. 

2 Other chief causes were the financial straits of the Confederation and the 
economic distress and injury to trade consequent on the disorganized condi¬ 
tion of several States. See the observations of Mr. Wilson in the Pennsylvania 
Convention (Elliot’s Debates, ii. 524). He shows that the case was one of neces- 




chap, hi THE ORIGIN OF THE CONSTITUTION 


27 


two European monarchies, Spain and England, as its neighbours 
on the American continent. France had lately held territories 
to the north of them in Canada, and to the south and west of 
them in Louisiana. 1 She had been their ally against England, 
she became in a few years again the owner of territories west 
of the Mississippi. The fear of foreign interference, the sense 
of weakness, both at sea and on land, against the military 
monarchies of Europe, was constantly before the mind of 
American statesmen, and made them anxious to secure at all 
hazard a national government capable of raising an army and 
navy, and of speaking with authority on behalf of the new 
republic. It is remarkable that the danger of European aggres¬ 
sion or complications was far more felt in the United States 
from 1783 down till about 1820, than it has been during the 
last half century when steam has brought Europe five times 
pearer than it then wasjj 

Several of the conventions which ratified the Constitution 
accompanied their acceptance with an earnest recommendation 
of various amendments to it, amendments designed to meet 
the fears of those who thought that it encroached too far upon 
the liberties of the people. Some of these were adopted, im¬ 
mediately after the original instrument had come into force, 
by the method it prescribes, viz. a two-thirds majority in Con¬ 
gress and a majority in three-fourths of the States. They are 
the amendments of 1791, ten in number, and they constitute 
what the Americans, following a venerable English precedent, 
call a Bill or Declaration of Rights. 

The Constitution of 1789 2 deserves the veneration with 

sity, and winds up with the remark, “The argument of necessity is the patriot’s 
defence as well as the tyrant’s plea.” 

1 The vast territory then called Louisiana was transferred by France to 
Spain in 1762, but Spanish government was not established there till 1789. It 
was ceded by Spain to France in 1800, and purchased by the United States 
from Napoleon in 1803. Spain had originally held Florida, ceded it to 
Britain in 1763, received it back in 1783, and in 1819 sold it to the United 
States. 

2 One may call the Constitution after either the year 1787,. when it was 
drafted, or the year 1788, when it was accepted by the requisite number of 
States, or the year 1789, when it took full effect, the Congress of the Confed¬ 
eration having fixed the first Wednesday in March in that year as the day 
when it should come into force. The year 1789 has the advantage of being 
easily remembered, because it coincides with the beginning of the great revolu¬ 
tionary movements of modern Europe. The Confederation may be taken to 
have expired with the expiry of its Congress, and its Congress died for want 
of a quorum. 



28 


THE NATIONAL GOVERNMENT 


PAST 1 


which the Americans have been accustomed to regard it. It is 
true that many criticisms have been passed upon its arrange¬ 
ment, upon its omissions, upon the artificial character of some 
of the institutions it creates. Recognizing slavery as an insti¬ 
tution existing in some States, and not expressly negativing 
the right of a State to withdraw from the Union, it has been 
charged with having contained the germ of civil war, though 
that germ took seventy years to come to maturity. And what¬ 
ever success it has attained must be in large measure ascribed 
to the political genius, ripened by long experience, of the 
Anglo-American race, by whom it has been worked, and who 
might have managed to work even a worse drawn instrument. 
Yet, after all deductions, it ranks above every other written 
constitution for the intrinsic excellence of its scheme, its adap¬ 
tation to the circumstances of the people, the simplicity, brevity, 
and precision of its language, its judicious mixture of definite¬ 
ness in principle with elasticity in details. 1 One is therefore 
induced to ask, before proceeding to examine it, to what causes, 
over and above the capacity of its authors, and the patient toil 
they bestowed upon it, these merits are due, or in other words, 
what were the materials at the command of the Philadelphia 
Convention for the achievement of so great an enterprise as the 
creation of a nation by means of an instrument of government. 
The American Constitution is no exception to the rule that 
everything which has power to win the obedience and respect 
of men must have its roots deep in the past, and that the more 
slowly every institution has grown, so much the more enduring 
is it likely to prove. There is little in this Constitution that 
is absolutely new. There is much that is as old as Magna 
Charta. 

The men of the Convention had the experience of the Eng¬ 
lish Constitution. That Constitution, very different then from 
what it is now, was even then not quite what they thought it. 
Their view was tinged not only by recollections of the influence 
exercised by King George the Third, an influence due to transi¬ 
tory causes, but which made them overrate its monarchical ele- 


1 The literary Bostonians laid hold at once of its style as proper for admira¬ 
tion. Mr. Ames said in the Massachusetts Convention of 1788, “Considered 
merely as a literary performance, the Constitution is an honour to our country. 
Legislators have at length condescended to speak the language of philosophy.” 
— Elliot’s Debates, ii. 55. 



chap, iii THE ORIGIN OF THE CONSTITUTION 


29 


ment, 1 but also by the presentation of it which they found in 
the work of Mr. Justice Blackstone. He, as was natural in a 
lawyer and a man of letters, described rather its theory than its 
practice, and its theory was many years behind its practice. 
The powers and functions of the cabinet, the overmastering 
force of the House of Commons, the intimate connection between 
legislation and administration, these which are to us now the 
main characteristics of the English Constitution were still far 
from fully developed. But in other points of fundamental 
importance they appreciated and turned to excellent account 
its spirit and methods. 

They had for their oracle of political philosophy the treatise 
of Montesquieu on the Spirit of Laws, which, published anony¬ 
mously at Geneva forty years before, had won its way to an 
immense authority on both sides of the ocean. Montesquieu, 
contrasting the private as well as public liberties of Englishmen 
with the despotism of Continental Europe, had taken the Con¬ 
stitution of England as his model system, and had ascribed its 
merits to the division of legislative, executive, and judicial 
functions which he discovered in it, and to the system of checks 
and balances whereby its equilibrium seemed to be preserved. 
No general principle of politics laid such hold on the constitution- 
makers and statesmen of America as the dogma that the separa¬ 
tion of these three functions is essential to freedom. It had already 
been made the groundwork of several State constitutions. It 
is always reappearing in their writings : it was never absent from 
their thoughts. Of the supposed influence of other Continental 
authors, such as Rousseau, or even of English thinkers such as 
Burke, there are few direct traces in the Federal Constitution or 
in the classical contemporaneous commentary on and defence of 
it 2 which we owe to the genius of Hamilton and his less famous 
coadjutors, Madison and Jay. But we need only turn to the 
Declaration of Independence and the original constitutions of the 
States, particularly the Massachusetts Constitution of 1780, 

1 There is a tendency in colonists to over-estimate the importance of the 
Crown, whose conspicuous position as the authority common to the whole 
empire makes it an object of special interest and respect to persons living 
at a distance. It touches their imagination, whereas assemblies excite their 
criticism. 

2 The Federalist, a series of papers published in the New York newspapers 
in advocacy of the Federal Constitution when the question of accepting it was 
coming before the New York State Convention. 



30 


THE NATIONAL GOVERNMENT 


PART l 


to perceive that abstract theories regarding human rights had 
laid firm hold on the national mind. Such theories naturally 
expanded with the practice of republican government, and have 
at various times been extremely potent factors in American 
history. But the influence of France and her philosophers belongs 
chiefly to the years succeeding 1789, when Jefferson, who was 
fortunately absent in Paris during the Constitutional Convention, 
headed the democratic propaganda. 

Further, they had the experience of their colonial and State 
governments, and especially, for this was freshest and most in 
point, the experience of the working of the State Constitutions, 
framed at or since the date when the colonies threw off their 
English allegiance. Many of the Philadelphia delegates had 
joined in preparing these instruments : all had been able to 
watch and test their operation. They compared notes as to the 
merits, tested by practice, of the devices which their States had 
respectively adopted. They had the inestimable advantage of 
knowing written or rigid constitutions in the concrete; that is 
to say, of comprehending how a system of government actually 
moves and plays under the control of a mass of statutory pro¬ 
visions defining and limiting the powers of its several organs. 
The so-called Constitution of England consists largely of 
customs, precedents, traditions, understandings, often vague 
and always flexible. It was quite a different thing, and for the 
purpose of making a constitution for the American nation an 
even more important thing, to have lived under and learnt to 
work systems determined by the hard and fast lines of a single 
document having the full force of law, for this experience taught 
them how much might safely be included in such a document, 
and how far room must be left under it for unpredictable emer¬ 
gencies and unavoidable development. 

Lastly, they had in the principle of the English common 
law that an act done by any official person or law-making body 
beyond his or its legal competence is simply void, a key to 
the difficulties involved in the establishment of a variety of 
authorities not subordinate to one another, but each supreme 
in its own defined sphere. The application of this principle 
made it possible not only to create a National government which 
should leave free scope for the working of the State govern¬ 
ments, but also so to divide the powers of the National govern¬ 
ment among various persons and bodies as that none should 



chap, hi THE ORIGIN OF THE CONSTITUTION 31 


absorb or overbear the others. By what machinery these ob¬ 
jects were attained will appear when we come to consider the 
effect of a written or Rigid constitution embodying a funda¬ 
mental law, and the functions of the judiciary in expounding 
and applying such a law. 1 


1 See post, Chapters XXIII. and XXXIII. 



CHAPTER IV 


NATURE OF THE FEDERAL GOVERNMENT 

The acceptance of the Constitution of 1789 made the Ameri¬ 
can people a nation. It turned what had been a League of 
States into a Federal State, by giving it a National Govern¬ 
ment with a direct authority over all citizens. But as this 
national government was not to supersede the governments of 
the States, the problem which the * Constitution-makers had 
to solve was two-fold. They had to create a central govern¬ 
ment. They had also to determine the relations of this central 
government to the States as well as to the individual citizen. 
An exposition of the Constitution and criticism of its working 
must therefore deal with it in these two aspects, as a system 
of national government built up of executive powers and legis¬ 
lative bodies, like the monarchy of England or the republic of 
France, and as a Federal system linking together and regulat¬ 
ing the relations of a number of commonwealths which are for 
certain purposes, but for certain purposes only, subordinated 
to it. It will conduce to clearness if these two aspects are kept 
distinct; and the most convenient course will be to begin with 
the former, and first to describe the American system as a Na¬ 
tional system, leaving its Federal character for the moment on 
one side. 

It must, however, be remembered that the Constitution does 
not profess to be a complete scheme of government, creating 
organs for the discharge of all the functions and duties which 
a civilized community undertakes. It presupposes the State 
governments. It assumes their existence, their wide and con¬ 
stant activity. It is a scheme designed to provide for the dis¬ 
charge of such and so many functions of government as the 
States did not, and indeed could not, or at any rate could not 
adequately, possess and discharge. It is therefore, so to speak, 
the complement and crown of the State Constitutions, which 

32 


chap, iv NATURE OF THE FEDERAL GOVERNMENT 33 


must be read along with it and into it in order to make it cover 
the whole field of civil government, as do the Constitutions of 
such countries as France, Belgium, Italy. 

The administrative, legislative, and judicial functions for 
which the Federal Constitution provides are those relating to 
matters which must be deemed common to the whole nation, 
either because all the parts of the nation are alike interested 
in them, or because it is only by the nation as a whole that 
they can be satisfactorily undertaken. The chief of these 
common or national matters are 1 — 

War and peace : treaties and foreign relations generally. 

Army and navy. 

Federal courts of justice. 

Commerce, foreign and between the several States. 

Currency. 

Copyright and patents. 

The post-office and post roads. 

Taxation for the foregoing purposes, and for the general 
support of the Government. 

The protection of citizens against unjust or discriminating 
legislation by any State. 2 

This list includes the subjects upon which the national legis¬ 
lature has the right to legislate, the national executive to 
enforce the Federal laws and generally to act in defence of 
national interests, the national judiciary to adjudicate. All 
other legislation and administration is left to the several States, 
without power of interference by the Federal legislature or 
Federal executive. 

Such then being the sphere of the National government, let 
us see in what manner it is constituted, of what departments 
it consists. 


1 The full list will be found in the Constitution, Art. i. § 8 (printed in the 
Appendix), with which may be compared the British North America Act 1867 
(30 and 31 Viet. cap. 8), and the Federal Council of Australasia Act 1885 (48 
and 49 Viet. cap. 60), the Swiss Constitution of 1874 (Arts. 8, 22, 30, 42, 54, 64, 
67-70), the Constitution of the Commonwealth of Australia, drafted by an 
Australian Convention and enacted in 1900 by the Imperial Parliament' in the 
Commonwealth of Australia Act of that year and the (much more unitary) 
Constitution of the South African Union, passed as an Act of the Imperial Parlia¬ 
ment in 1910. 

2 Amendments xiv. and xv. 



34 


THE NATIONAL GOVERNMENT 


PART 1 


The framers of this government set before themselves four 
objects as essential to its excellence, viz. — 

Its vigour and efficiency. 

The independence of each of its departments (as being essen¬ 
tial to the permanency of its form). 

Its dependence on the people. 

The security under it of the freedom of the individual. 

The first of these objects they sought by creating a strong 
executive, the second by separating the legislative, executive, 
and judicial powers from one another, and by the contrivance 
of various checks and balances, the third by making all authori¬ 
ties elective and elections frequent, the fourth both by the 
checks and balances aforesaid, so arranged as to restrain any 
one department from tyranny, and by placing certain rights of 
the citizen under the protection of the written constitution. 

They had neither the rashness nor the capacity necessary for 
constructing a Constitution a priori . There is wonderfully little 
genuine inventiveness in the world, and perhaps least of all has 
been shown in the sphere of political institutions. These men, 
practical politicians who knew how infinitely difficult a business 
government is, desired no bold experiments. They preferred, 
so far as circumstances permitted, to walk in the old paths, to 
follow methods which experience had tested. 1 Accordingly 
they started from the system on which their own colonial gov¬ 
ernments, and afterwards their State governments, had been 
conducted. This system bore a general resemblance to the 
British Constitution; and in so far it may with truth be said 
that the British Constitution became a model for the new 
national government. They held England to be the freest and 
best-governed country in the world, but were resolved to avoid 
the weak points which had enabled King George III. to play 
the tyrant, and which rendered English liberty, as they thought, 
far inferior to that which the constitutions of their own States 

1 J. R. Lowell said with equal point and truth of the men of the Conven¬ 
tion : ‘ They had a profound disbelief in theory and knew better than to com¬ 
mit the folly of breaking with the past. They were not seduced by the French 
fallacy that a new system of Government could be ordered like a new suit of 
clothes. They would as soon have thought of ordering a suit of flesh and skin. 
It is only on the roaring loom of time that the stuff is woven for such a vesture 
of their thought and experience as they were meditating.”—Address on De¬ 
mocracy, delivered Oct. 6, 1884. 



chap, iv NATURE OF THE FEDERAL GOVERNMENT 35 


secured. With this venerable mother, and these children, better 
in their judgment than the mother, before their eyes, they 
created an executive magistrate, the President, on the model of 
the State Governor, and of the British Crown. They created a 
legislature of two Houses, Congress, on the model of the two 
Houses of their State legislatures, and of the British Parlia¬ 
ment. And following the precedent of the British judges, irre¬ 
movable except by the Crown and Parliament combined, they 
created a judiciary appointed for life, and irremovable save by 
impeachment. 1 

In these great matters, however, as well as in many lesser 
matters, they copied not so much the Constitution of England 
as the Constitutions of their several States, in which, as w~as 
natural, many features of the English Constitution had been 
embodied. It has been truly said that nearly every provision 
of the Federal Constitution that has worked well is one bor¬ 
rowed from or suggested by some State constitution; nearly 
every provision that has worked badly is one which the Con¬ 
vention, for want of a precedent, was obliged to devise for itself. 
To insist on this is not to detract from the glory of that illus¬ 
trious body, for if we are to credit them with less inventiveness 
than has sometimes been claimed for them, we must also credit 
them with a double portion of the wisdom which prefers experi¬ 
ence to a priori theory, and the sagacity which selects the best 
materials from a mass placed before it, aptly combining them 
to form a new structure. 2 

Of minor divergences between their work and the British 
Constitution I shall speak subsequently. But one profound 
difference must be noted here. The British Parliament had 
always been, was then, and remains now, a sovereign and con¬ 
stituent assembly. It can make and unmake any and every 
law, change the form of government or the succession to the 
crown, interfere with the course of justice, extinguish the most 
sacred private rights of the citizen. Between it and the peo¬ 
ple at large there is no legal distinction, because the whole pleni- 

1 Minor differences between the English and American systems are that the 
American Federal judge is appointed by the President, “with the advice and 
consent of the Senate,’’ an English judge by the Crown alone : an American 
judge is impeachable by the House of Representatives, and tried by the Senate, 
an English judge is removable by the Crown on an address by both Houses. 

2 See note to this chapter in the Appendix for further remarks on the in¬ 
fluence of the State Constitutions. 





36 


THE NATIONAL GOVERNMENT 


PART \ 


tude of the people’s rights and powers resides in it, just as if 
the whole nation were present within the chamber where it sits. 
In point of legal theory it is the nation, being the historical 
successor of the Folk Moot of our Teutonic forefathers. Both 
practically and legally, it is to-day the only and the sufficient 
depository of the authority of the nation; and is therefore, 
within the sphere of law, irresponsible and omnipotent. 

In the American system there exists no such body. Not 
merely Congress alone, but also Congress and the President 
conjoined, are subject to the Constitution, and cannot move a 
step outside the circle which the Constitution has drawn around 
them. If they do, they transgress the law and exceed their 
powers. Such acts as they may do in excess of their powers 
are void, and may be, indeed ought to be, treated as void by the 
meanest citizen. The only power which is ultimately sovereign, 
as the British Parliament is always and directly sovereign, is 
the people of the States, acting in the manner prescribed by the 
Constitution, and capable in that manner of passing any law 
whatever in the form of a constitutional amendment. 

This fundamental divergence from the British system is 
commonly said to have been forced upon the men of 1787 by 
the necessity, in order to safeguard the rights of the several 
States, of limiting the competence of the national government. 1 
But even supposing there had been no States to be protected, 
the jealousy which the American people felt of those whom they 
chose to govern them, their fear lest one power in the govern¬ 
ment should absorb the rest, their anxiety to secure the pri¬ 
mordial rights of the citizens from attack, either by magistrate 
or by legislature, would doubtless have led, as happened with 
the earlier constitutions of revolutionary France, to the crea¬ 
tion of a supreme constitution or fundamental instrument of 
government, placed above and controlling the national legis¬ 
lature itself. They had already such fundamental instrument 
in the charters of the colonies, which had passed into the con¬ 
stitutions of the several States; and they would certainly have 
followed, in creating their national constitution, a precedent 
which they deemed so precious. 

1 It is often assumed by writers on constitutional subjects that a Federal 
Government presupposes a written or Rigid constitution. This is not neces¬ 
sarily so. There may be, and have been, federations with no fundamental 
law unalterable by the usual legislative authority. The Achaean League had 
apparently none. 



chap, iv NATURE OF THE FEDERAL GOVERNMENT 37 


The subjection of all the ordinary authorities and organs of 
government to a supreme instrument expressing the will of the 
sovereign people, and capable of being altered by them only, 
has been usually deemed the most remarkable novelty of the 
American system. But it is merely an application to the wider 
sphere of the nation, of a plan approved by the experience of 
the several States. And the plan had, in these States, been the 
outcome rather of a slow course of historical development than 
of conscious determination taken at any one point of their prog¬ 
ress from petty settlements to powerful republics. Neverthe¬ 
less, it may well be that the minds of the leaders who guided 
this development were to some extent influenced and inspired 
by recollections of the English Commonwealth, of the seven¬ 
teenth century, which had seen the establishment, though for 
a brief space only, of a genuine supreme or rigid constitution, in 
the form of the famous Instrument of Government of a.d. 1653, 
and some of whose sages had listened to the discourses in which 
James Harrington, one of the most prescient minds of that 
great age, showed the necessity for such a constitution, and 
laid down its principles, suggesting that, in order to give it the 
higher authority, it should be subscribed by the people them¬ 
selves. 

We may now proceed to consider the several departments of 
the National Government. It will be simplest to treat of each 
separately, and then to examine the relations of each to the 
others, reserving for subsequent chapters an account of the rela¬ 
tions of the National Government as a whole to the several 
States. 



CHAPTER V 


THE PRESIDENT 

Every one who undertakes to describe the American system 
of government is obliged to follow the American division of it 
into three departments — Executive, Legislative, Judicial. 
I begin with the executive, as the simplest of the three. 

The President is the creation of the Constitution of 1789. 
Under the Confederation there was only a presiding officer of 
Congress, but no head of the nation. 

Why was it thought necessary to have a President at all ? 
The fear of monarchy, of a strong government, of a centralized 
government, prevailed widely in 1787. George III. was an 
object of hatred: he remained a bogey to succeeding genera¬ 
tions of American children. The Convention found it ex¬ 
tremely hard to devise a satisfactory method of choosing the 
President, nor has the method they adopted proved satisfactory. 
That a single head is not necessary to a republic might have 
been suggested to the Americans by those ancient examples to 
which they loved to recur. The experience of modern Switzer¬ 
land has made it still more obvious to us now. Yet it was 
settled very early in the debates of 1788 that the central execu¬ 
tive authority must be vested in one person ; and the opponents 
of the draft Constitution, while quarrelling with his powers, 
did not accuse his existence. 

The explanation is to be found not so much in a wish to repro¬ 
duce the British Constitution as in the familiarity of the Ameri¬ 
cans, as citizens of the several States, with the office of State 
governor (in some States then called President) and in their 
disgust with the feebleness which Congress had shown under 
the Confederation in its conduct of the war, and, after peace 
was concluded, of the general business of the country. Opinion 
called for a man, because an assembly had been found to lack 
promptitude and vigour. And it may be conjectured that the 
alarms felt as to the danger from one man’s predominance were 
largely allayed by the presence of George Washington. Even 

38 


CHAP. V 


THE PRESIDENT 


39 


while the debates were proceeding, every one must have thought 
of him as the proper person to preside over the Union as he was 
then presiding over the Convention. The creation of the office 
would seem justified by the existence of a person exactly fitted 
to fill it, one whose established influence and ripe judgment 
would repair the faults then supposed to be characteristic of 
democracy, its impulsiveness, its want of respect for authority, 
its incapacity for pursuing a consistent line of action. 

Hamilton felt so strongly the need for having a vigorous ex¬ 
ecutive who could maintain a continuous policy, as to suggest 
that the head of the state should be appointed for good behav¬ 
iour, i.e. for life, subject to removal by impeachment. The 
idea was disapproved, though it received the support of persons 
so democratically-minded as Madison and Edmund Randolph; 
but nearly all sensible men, including many who thought better 
of democracy than Hamilton himself did, admitted that the risks 
of foreign war, risks infinitely more serious in the infancy of 
the Republic than they have subsequently proved, required, the 
concentration of executive powers into a single hand. And the 
fact that in every one of their commonwealths there existed an 
officer in whom the State constitution vested executive author¬ 
ity, balancing him against the State legislature, made the estab¬ 
lishment of a Federal chief magistrate seem the obvious course. 

Assuming that there was to be such a magistrate, the states¬ 
men of the Convention, like the solid practical men they were, 
did not try to construct him out of their own brains, but looked 
to some existing models. They therefore made an enlarged 
copy of the State Governor, or to put the same thing differently, 
a reduced and improved copy of the English king. He is George 
III. shorn of a part of his prerogative by the intervention of the 
Senate in treaties and appointments, of another part by the 
restriction of his action to Federal affairs, while his dignity as 
well as his influence are diminished by his holding office for four 
years instead of for life. 1 His salary is too small to permit him 

1 When the Romans got rid of their king, they did not really extinguish the 
office, but set up in their consul a sort of annual king, limited not only by the 
short duration of his power, but also by the existence of another consul with 
equal powers. So the Americans hoped to restrain their President not merely 
by the shortness of his term, but also by diminishing the power which they 
left to him ; and this they did by setting up another authority to which they 
entrusted certain executive functions, making its consent necessary to the 
validity of certain classes of the President’s executive acts. This is the Senate, 
whereof more anon. 




40 


THE NATIONAL GOVERNMENT 


PART i 


either to maintain a Court or to corrupt the legislature; nor 
can he seduce the virtue of the citizens by the gift of titles of 
nobility, for such titles are altogether forbidden. Subject to 
these precautions, he was meant by the constitution-framers 
to resemble the State governor and the British king, not only 
in being the head of the executive, but in standing apart from 
and above political parties. He was to represent the nation as 
a whole, as the governor represented the State~commonwealth. 
The independence of his position, with nothing either to gain 
or to fear from Congress, would, it was hoped, set him free to 
think only of the welfare of the people. 

This idea appears in the method provided for the election of 
a President. To have left the choice of the chief magistrate 
to a direct popular vote over the whole country would have 
raised a dangerous excitement, and would have given too much 
encouragement to candidates of merely popular gifts. To 
have entrusted it to Congress would have not only subjected 
the executive to the legislature in violation of the principle 
which requires these departments to be kept distinct, but have 
tended to make him the creature of one particular faction 
instead of the choice of the nation. Hence the device of a 
double election was adopted, perhaps with a faint reminiscence 
of the methods by which the Doge was then still chosen at 
Venice and the Roman Emperor in Germany. The Constitution 
directs each State to choose a number of presidential electors 
equal to the number of its representatives in both Houses of 
Congress. Some weeks later, these electors meet in each State 
on a day fixed by law, and give their votes in writing for the 
President and Vice-President. 1 The votes are transmitted, 
sealed up, to the capital and there opened by the president of 
the Senate in the presence of both Houses and counted. To 
preserve the electors from the influence of faction, it is pro¬ 
vided that they shall not be members of Congress, nor holders 
of any Federal office. This plan was expected to secure the 
choice by the best citizens of each State, in a tranquil and 
deliberate way, of the man whom they in their unfettered dis¬ 
cretion should deem fittest to be chief magistrate of the Union. 

1 Originally the person who received most votes was deemed to have been 
chosen President, and the person who stood second, Vice-President. This led 
to confusion, and was accordingly altered by the twelfth constitutional amend¬ 
ment, adopted in 1804, which provides that the President and Vice-President 
lhall be voted for separately. 



CHAP. Y 


THE PRESIDENT 


41 


Being themselves chosen electors on account of their personal 
merits, they would be better qualified than the masses to select 
an able and honourable man for President. Moreover, as the 
votes are counted promiscuously, and not by States, each elec¬ 
tor’s voice would have its weight. He might be in a minority 
in his own State, but his vote would nevertheless tell because 
it would be added to those given by electors in other States for 
the same candidate. 

No part of their scheme seems to have been regarded by the 
constitution-makers of 1787 with more complacency than this, 1 
although no part had caused them so much perplexity. No 
part has so utterly belied their expectations. The presidential 
electors have become a mere cog-wheel in the machine; a mere 
contrivance for giving effect to the decision of the people. 
Their personal qualifications are a matter of indifference. 
They have no discretion, but are chosen under a pledge — a 
pledge of honour merely, but a pledge which has never (since 
1796) been violated — to vote for a particular candidate. In 
choosing them the people virtually choose the President, and 
thus the very thing which the men of 1787 sought to prevent 
has happened, — the President is chosen by a popular vote. 
Let us see how this has come to pass. 

In the first two presidential elections (in 1789 and 1792) the 
independence of the electors did not come into question, because 
everybody was for Washington, and parties had not yet been 
fully developed. Yet in the election of 1792 it was generally 
understood that electors of one way of thinking were to vote 
for Clinton as their second candidate (i.e. for Vice-President) 
and those of the other side for John Adams. In the third 
election (1796) no pledges were exacted from electors, but the 
election contest in which they were chosen was conducted on 
party lines, and although, when the voting by the electors 
arrived, some few votes were scattered among other persons, 
there were practically only two presidential candidates before 
the country, John Adams and Thomas Jefferson, for the for¬ 
mer of whom the electors of the Federalist party, for the latter 


1 “The mode of appointment of the chief magistrate of the United States is 
almost the only part of the system which has escaped without some censure, 
or which has received the slightest mark of approbation from its opponents.” 
— Federalist , No. lxvii., cf. No. 1, and see the observations of Mr. Wilson in 
the Convention of Pennsylvania ; Elliot’s Debates, vol. ii. 



42 


THE NATIONAL GOVERNMENT 


PART 1 


those of the Republican (Democratic) 1 party were expected to 
vote. The fourth election was a regular party struggle, carried 
on in obedience to party arrangements. Both Federalists and 
Republicans put the names of their candidates for President 
and Vice-President before the country, and round these names 
the battle raged. The notion of leaving any freedom or dis¬ 
cretion to the electors had vanished, for it was felt that an issue 
so great must and could be decided by the nation alone. From 
that day till now there has never been any question of reviving 
the true and original intent of the plan of double election. 
Even in 1876 the suggestion that the disputed election might 
be settled by leaving the electors free to choose, found no favor. 
Hence nothing has ever turned on the personality of the electors. 
They are now so little significant that to enable the voter to know 
for which set of electors his party desires him to vote, it is often 
thought well to put the name of the presidential candidate whose 
interest they represent at the top of the voting ticket on which 
their own names are printed. Nor need this extinction of the 
discretion of the electors be regretted, because what has happened 
in somewhat similar cases makes it certain that the electors would 
have so completely fallen under the control of the party organiza¬ 
tions as to vote simply at the bidding of the party managers. 
Popular election is therefore, whatever may be its defects, a 
healthier method, for it enables the people to reject candidates 
whom the low morality of party managers would approve. 

The completeness and permanence of this change has been 
assured by the method which now prevails of choosing the 
electors. The Constitution leaves the method to each State, 
and in the earlier days many States entrusted the choice to 
their legislatures. But as democratic principles became devel¬ 
oped, the practice of choosing the electors by direct popular 
vote, originally adopted by Virginia, Pennsylvania, and Mary¬ 
land, spread by degrees through the other States, till by 1832 
South Carolina was the only State which retained the method 
of appointment by the legislature. She dropped it in 1868, 
and popular election now rules everywhere, though any State 
may go back to the old plan if it pleases. 2 In some States the 


1 The party then called Republican has, since about 1830-1840, been called 
Democratic. The party now called Republican did not arise till 1854. 

2 Colorado, not having time, after her admission to the Union in 1876, to 
provide by law for a popular choice of electors to vote in the election of a Presi- 



CHAP. V 


THE PRESIDENT 


43 


electors were for a time chosen by districts, like members of 
the House of Representatives. But the plan of choice by a 
single popular vote over the whole of the State found increasing 
favour, seeing that it was in the interest of the party for the 
time being dominant in the State. In 1828 Maryland was the 
only State which clung to district voting. She, too, adopted 
the “ general ticket ” system in 1832, since which year it was 
universal until 1891, when Michigan reverted to the district 
system, the party then dominant in her legislature conceiving 
that they would thereby secure some districts, and therefore 
some electors of their own colour, although they could not carry 
the State as a whole. 1 (This in fact happened in 1892.) Thus 
the issue comes directly before the people. The parties nomi¬ 
nate their respective candidates, as hereafter described (Chap¬ 
ters LXIX. and LXX.), a tremendous “ campaign ” of stump 
speaking, newspaper writing, street parades, and torchlight pro¬ 
cessions sets in and rages for about four months : the polling 
for electors takes place early in November, on the same day over 
the whole Union, and when the result is known the contest is 
over, because the subsequent meeting and voting of the electors 
in their several States is mere matter of form. 

So far the method of choice by electors may seem to be merely 
a roundabout way of getting the judgment of the people. It is 
more than this. It has several singular consequences, unforeseen 
by the framers of the Constitution. * It has made the election 
virtually an election by States, for the system of choosing electors 
by “ general ticket ” over the whole State usually causes the whole 
weight of a State to be thrown into the scale of one candidate, 
that candidate whose list of electors is carried in the given State. 2 


dent in the November of that year, left the choice to the legislature, but now 
elects its presidential electors by popular vote like the other States. 

1 In 1893 this law was repealed and the “general ticket” system restored. 

2 A list is usually carried entire if carried at all, because it would be foolish 
for the partisans of a candidate to vote for some only and not for all of the 
electors w’hose only function is to vote for him. However, the electors on a 
ticket seldom receive exactly the same number of popular votes ; and thus it 
sometimes happens that when the election is close, one or two electors of the 
beaten party find their way in. In California in 1880 one out of the six electors 
in the Democratic ticket, being personally unpopular, failed to be carried, though 
the other five were. Similarly in California, Ohio, and Oregon in 1892 one elector 
belonging to the defeated list was chosen, and in North Dakota, was presented 
the surprising spectacle of the Republican, Democratic and “Populist” parties 
each winning one elector. In the election of 1908 Maryland chose six Demo- 
cratic and two Republican electors. 



44 


THE NATIONAL GOVERNMENT 


PART I 


In the election of 1884, New York State had thirty-six electoral 
votes. Each party ran its list or “ticket” of thirty-six presi¬ 
dential electors for the State, who were bound to vote for the 
party’s candidate, Mr. Blaine or Mr. Cleveland. The Demo¬ 
cratic list (i.e. that which included the thirty-six Cleveland electors) 
was carried by a majority of 1100 out of a total poll exceeding 
1,100,000. Thus, all the thirty-six electoral votes of New York 
were secured for Mr. Cleveland, and these thirty-six determined 
the issue of the struggle over the whole Union, in which nearly 
10,000,000 popular votes were cast. The hundreds of thousands 
of votes given in New York for the Blaine or Republican list did 
not go to swell the support which Mr. Blaine obtained in other 
States, but were utterly lost. Hence in a presidential election, 
the struggle concentrates itself in the doubtful States, where the 
great parties are pretty equally divided, and is languid in States 
where a distinct majority either way may be anticipated, because, 
since it makes no difference whether a minority be large or small, 
it is not worth while to struggle hard to increase a minority which 
cannot be turned into a majority. And hence also a man may be, 
and has been, 1 elected President by a minority of popular votes. 

When such has been the fate of the plan of 1787, it need 
hardly be said that the ideal President, the great and good man 
above and outside party, whom the judicious and impartial 
electors were to choose, has not been secured. The ideal was 
realized once and once only in the person of George Washing¬ 
ton. His successor in the chair (John Adams) was a leader 
of one of the two great parties then formed, the other of which 
has, with some changes, lasted down to our own time. Jeffer¬ 
son, who came next, was the chief of that other party, and his 
election marked its triumph. Nearly every subsequent Presi¬ 
dent has been elected as a party leader by a party vote, and 
has felt bound to carry out the policy of the men who put him 
in power. 2 Thus instead of getting an Olympian President 

1 This happened in 1876, when Mr. Hayes received, on the showing of his own 
partisans, 252,000 popular votes less than those given for Mr. Tilden ; and in 
1888, when Mr. Harrison was 95,534 popular votes behind Mr. Cleveland. 

It is an odd result of the system that the bestowal of the suffrage on the 
negroes has operated against the Republican party which bestowed it. The 
Southern States received in respect of this increase in their free population 37 
additional presidential votes, and these were in the elections of 1880, 1884, 
1888, and 1892, all thrown for the Democratic candidate. 

2 James Monroe was chosen President in 1820 with practical unanimity; 
but this was because one of the two parties had for the time been crushed out 



CHAP. V 


THE PRESIDENT 


45 


raised above faction, America has, despite herself, reproduced 
the English system of executive government by a party majority, 
reproduced it in a more extreme form, because in England the 
titular head of the State, in whose name administrative acts 
are done, stands in isolated dignity outside party politics. The 
disadvantages of the American plan are patent; but in practice 
they are less serious than might be expected, for the responsibility 
of a great office and the feeling that he represents the whole na¬ 
tion tend to sober and control the President. Except as regards 
patronage, he has seldom acted as a mere tool of faction, or sought 
to abuse his administrative powers to the injury of his political 
adversaries. 

The Constitution prescribes no limit for the re-eligibility of 
the President. He may go on being chosen for one four year 
period after another for the term of his natural life. But tra¬ 
dition has supplied the place of law. Elected in 1789, Wash¬ 
ington submitted to be re-elected in 1792. But when he had 
served this second term he absolutely refused to serve a third, 
urging the risk to republican institutions of suffering the same 
man to continue constantly in office. Jefferson, Madison, 
Monroe, and Jackson obeyed the precedent, and did not 
seek, nor their friends for them, re-election after two terms. 
After them no President was re-elected, except Lincoln, down to 
General Grant. Grant was President from 1869 to 1873, and 
again from 1873 to 1877, then came Mr. Hayes; and in 1880 
an attempt was made to break the unwritten rule in Grant’s 
favour. Each party, as will be more fully explained hereafter, 
nominates its candidates in a gigantic party assembly called 
the National Convention. In the Republican party Conven¬ 
tion of 1880 a powerful group of the delegates put forward 
Grant for nomination as the party candidate, alleging his special 
services as a ground for giving him the honour of a third term. 
Had there not been among the Republicans themselves a sec¬ 
tion personally hostile to Grant, or rather to those who sur¬ 
rounded him, the attempt might have succeeded, though it 
would probably have involved defeat at the polls. But this 
hostile section found the prepossession of the people against a 
third term so strong that, by appealing to the established tradi- 

and started no candidate. So also J. Q. Adams, Monroe’s successor, can hardly 
be called a party leader. After him the party-chosen Presidents go on with¬ 
out interruption. 




46 


THE NATIONAL GOVERNMENT 


PART I 


tion, they defeated Grant in the Convention, and nominated 
Mr. Garfield, who was victorious at the ensuing election. This 
precedent was at that time taken as practically decisive for the 
future, because General Grant, though his administration had 
been marked by grave faults, was an exceptionally popular 
figure. A principle affirmed against him seemed not likely to be 
departed from in favour of any later aspirant for many elections 
to come. Nevertheless it was only a tradition, not sure to be 
always regarded. And in 1912 a large body of seceders from the 
National Republican Convention held a convention of their own 
which nominated Mr. Roosevelt who had served two terms all 
but a few months. 

The Constitution (Amendment xii., which in this point repeats 
the original Art. xi. § 1) requires for the choice of a President 
“a majority of the whole number of electors appointed.” If 
no such majority is obtained by any candidate, i.e. if the votes 
of the electors are so scattered among different candidates, that 
out of the total number (which in 1912 was 529, and will increase 
as new members are added to the Senate and the House) no one 
receives an absolute majority (i.e. at least 265 votes), the choice 
goes over to the House of Representatives, who are empowered 
to choose a President from among the three candidates who have 
received the largest number of electoral votes. In the House 
the vote is taken by States, a majority of all the States (i.e. at 
present of twenty-five States out of forty-eight) being necessary 
for a choice. As all the members of the House from a State have 
but one collective vote, it follows that if they are equally divided 
among themselves, the vote of that State is lost. Supposing 
this to be the case in half the total number of States, or supposing 
the States so to scatter their votes that no candidate receives an 
absolute majority, then no President is chosen, and the Vice- 
President (supposing one to have been chosen) becomes President. 

Only twice has the election gone to the House. In 1800, 
when the rule still prevailed that the candidate with the largest 
number of votes became President, and the candidate who came 
second Vice-President, Jefferson and Aaron Burr received the 
same number. The Jeffersonian electors meant to make him 
President, but as they had also all voted for Burr, there was a tie. 
After a long struggle the House chose Jefferson. Feeling ran 
high, and had Jefferson been kept out by the votes of the Feder¬ 
alist party, who hated him more than Burr, his partisans might 



CHAP. V 


THE PRESIDENT 


47 


possibly have taken up arms. 1 In 1824 Andrew Jackson had 
99 electoral votes, and his three competitors (J. Q. Adams, 
Crawford, and Clay) 162 votes between them. The House chose 
J. Q. Adams by a vote of thirteen States against seven for 
Jackson and four for Crawford. 2 In this mode of choice, the 
popular will may be still less recognized than it is by the method 
pf voting through presidential electors, for if the twenty-five 
smaller States were through their representatives in the House to 
vote for candidate A, and the twenty-three larger States for 
candidate B, A would be seated, though the population of the 
former set of States is, of course, very much below that of the 
latter. 

The Constitution seems, though its language is not explicit, 
to have intended to leave the counting of the votes to the presi¬ 
dent of the Senate (the Vice-President of the United States) ; 
and in early days this officer superintended the count, and de¬ 
cided questions as to the admissibility of doubtful votes. How¬ 
ever, Congress has in virtue of its right to be present at the 
counting assumed the further right of determining all questions 
which arise regarding the validity of electoral votes, and has, it 
need hardly be said, determined them on each occasion from 
party motives. This would be all very well were a decision by 
Congress always certain of attainment. But it often happens 
that one party has a majority in the Senate, another party in 
the House, and then, as the two Houses vote separately and 
each differently from the other, a deadlock results. I must 
pass by the minute and often tedious controversies which have 
arisen on these matters. But one case deserves special mention, 
for it illustrates an ingrained and formidable weakness of the 
present electoral system. 

In 1876, Mr. Hayes was the Republican candidate for the 
presidency, Mr. Tilden the Democratic. The former carried 
his list of electors in seventeen States, whose aggregate electors 
numbered 163, and the latter carried his list also in seventeen 
States, whose aggregate electors numbered 184. (As the total 
number of electors was then 369, 184 was within one of being 
a half of that number.) Four States remained out of the total 

1 The votes of two States were for a long time divided ; but Hamilton’s 
influence at last induced the Federalist members to abstain from voting against 
Jefferson, whom he thought less dangerous than Burr. His action highly 
patriotic, for Jefferson was his bitter enemy — cost him his life at Burr’s hands. 

2 Clay, unlucky throughout in his ambitions for the presidency, had stood 



48 


THE NATIONAL GOVERNMENT 


PART l 


thirty-eight, and in each of these four two sets of persons had 
been chosen by popular vote, each set claiming, on grounds 
too complicated to be here explained, to be the duly chosen 
electors from those States respectively. 1 The electoral votes 
of these four States amounted to twenty-two, so that if in any 
one of them the Democratic set of electors had been found to 
have been duly chosen, the Democrats would have secured a 
majority of electoral votes, whereas eyen if in all of them 
Republican electors had been chosen, the Republican electors 
would have had a majority of one only. In such circumstances 
the only course for the Republican leaders, as good party men, 
was to claim all these doubtful States. This they promptly 
did, — party loyalty is the last virtue that deserts politicians, 
— and the Democrats did the like. 

Meanwhile the electors met and voted in their respective 
States. In the four disputed States the two sets of electors 
met, voted, and sent up to Washington, from each of these 
four, double returns of the electoral votes. The result of the 
election evidently depended on the question which set of 
returns should be admitted as being the true and legal returns 
from the four States respectively. The excitement over the 
whole Union was intense, and the prospect of a peaceful set¬ 
tlement remote, for the Constitution appeared to provide no 
means of determining the legal questions involved. Congress, 
as remarked above, had in some previous instances assumed 
jurisdiction, but seeing that the Republicans had a majority in 
the Senate, and the Democrats in the House of Representa¬ 
tives, it was clear that the majority in one House would vote 
for admitting the Republican returns, the majority in the other 
for admitting the Democratic. Negotiations between the lead¬ 
ers at last arranged a method of escape. A statute was passed 
creating an electoral commission of five Senators,, five members 
of the House of Representatives, and five Justices of the Supreme 
Court, who were to determine all questions as to the admissibility 

fourtn in the electoral vote, and so could not be chosen by the House. Jack- 
son had received the largest popular vote in those States where electors were 
chosen by the people. 

1 In Oregon the question was whether one of the chosen electors was dis¬ 
qualified because he was a postmaster. In Florida there were complaints of 
fraud, in South Carolina of intimidation, in Louisiana two rival State govern¬ 
ments existed, each claiming the right to certify electoral returns. There had 
doubtless been a good deal of fraud and some violence in several of the South¬ 
ern States. 



CHAP. V 


THE PRESIDENT 


4S 


of electoral votes from States sending up double returns. 1 Every¬ 
thing now turned on the composition of the electoral Com¬ 
mission, a body such as had never before been created. The 
Senate appointed three Republicans and two Democrats.. 
The House of Representatives appointed three Democrats 
and two Republicans. So far there was an exact balance. The 
statute had indicated four of the Justices who were to sit, two 
Republicans and two Democrats, and had left these four to 
choose a fifth. This fifth was the odd man whose casting vote 
would turn the scale. The four Justices chose a Republican 
Justice, and this choice practically settled the result, for every 
vote given by the members of the Commission was a strict 
party vote. 2 They were nearly all lawyers, and had all taken 
an oath of impartiality. The legal questions were so difficult, 
and for the most part so novel, that it was possible for a sound 
lawyer and honest man to take in each case either the view for 
which the Republicans or that for which the Democrats contended. 
Still it is interesting to observe that the legal judgment of every 
commissioner happened to coincide with his party proclivities. 3 
All the points in dispute were settled by a vote of eight to seven 
in favour of the returns transmitted by the Republican electors 
in the four disputed States, and Mr. Hayes was accordingly 
declared duly elected by a majority of 185 electoral votes against 
184. The decision may have been right as matter of law, — it is 
still debated by lawyers, — and there had been so much force 
and fraud on both sides in Florida, Louisiana, and South Caro¬ 
lina, that no one can say on which side substantial justice lay. 
Mr. Tilden deserves the credit of having induced his friends 
both to agree to a compromise slightly to his own disadvantage, 
and to accept peaceably, though with loud and long complaints, 
a result which baffled their hopes. I tell the story here because 
it points to a, grave danger in the presidential system. The 


1 Power was reserved to Congress to set aside by a vote of both Houses the 
decisions of the Commission, but as the two Houses differed in every case, 
the Democrats of the House always voting against each determination of the 
Commission, and the Republicans of the Senate supporting it, this provision 
made no difference. 

2 The Commission decided unanimously that the Democratic set of electors 
from South Carolina were not duly chosen, but they divided eight to seven as 
usual on the question of recognizing the Republican electors of that State. 

3 The same phenomenon has been observed in committees of the English 
House of Commons appointed to deal with purely legal questions, or to sit in 
a virtually judicial capacity. 

E 



50 


THE NATIONAL GOVERNMENT 


PART I 


stake played for is so high that the temptation-to fraud is 
immense ; and as the ballots given for the electors by the people 
are received and counted by State authorities under State laws, 
an unscrupulous State faction has opportunities for fraud at 
its command. In 1887 Congress, having had the subject 
pressed on its attention by successive Presidents, took steps 
to provide against a recurrence of the danger described. It 
passed a statute enacting that tribunals appointed in and by 
each State shall determine what electoral votes from the State 
are legal votes; and that if the State has appointed no such 
tribunal, the two Houses of Congress shall determine which 
votes (in case of double returns) are legal. If the Houses 
differ the vote of the State is lost. It is, of course, possible 
under this plan that the State tribunal may decide unfairly; 
but the main thing is to secure some decision. Unfairness is 
better than uncertainty. 

A President is removable during his term of office only by 
means of impeachment, a procedure familiar on both sides of 
the Atlantic in 1787, when the famous trial of Warren Has¬ 
tings was still lingering on at Westminster. Impeachment, 
which had played no small part in the development of English 
liberties, was deemed by the Americans of those days a valuable 
element in their new constitution, for it enabled Congress to 
depose, and the fear of it might be expected to restrain, a trea¬ 
sonably ambitious President. In obedience to State precedents, 1 
it is by the House of Representatives that the President is 
impeached, and by the Senate, sitting as a law court, with 
the chief justice of the Supreme court, the highest legal official 
of the country, as presiding officer, that he is tried. A two- 
thirds vote is necessary to conviction, the effect of which is 
simply to remove him from and disqualify him for office, leaving 
him “liable to indictment, trial, judgment, and punishment, 
according to law” (Constitution, Art. i. § 3, Art. ii. § 4). The 
impeachable offences are “treason, bribery, or other high crimes 
and misdemeanours,” an expression which some have held to 
cover only indictable offences, while others extend it to include 
acts done in violation of official duty and against the interests 

1 Impeachment was taken, not directly from English usage, but rather from 
the Constitutions of Virginia (1776), and Massachusetts (1780), which had, no 
doubt following the example of England, established this remedy against cul¬ 
pable officials. 



CHAP. V 


THE PRESIDENT 


51 


of the nation, such acts, in fact, as were often grounds for the 
English impeachments of the seventeenth century. As yet, 
Andrew Johnson is the only President who has been impeached. 
His headstrong conduct seemed to make his removal desirable, 
but as it was doubtful whether any single offence justified a 
conviction, several senators politically opposed to him voted 
for acquittal. 1 A two-thirds majority not having been secured 
upon any one article (the numbers being thirty-five for con¬ 
viction, nineteen for acquittal) he was declared acquitted, a 
result now generally approved. 

In case of the removal of a President by impeachment, or of 
his death, resignation, or inability to discharge his duties, the 
Vice-President steps into his place. The Vice-President is 
chosen at the same time, by the same electors, and in the same 
manner as the President. His only functions are to preside 
in the Senate and to succeed the President. Failing both 
President and Vice-President it was formerly provided by stat¬ 
ute, not by the Constitution, that the presiding officer for the 
time being of the Senate should succeed to the presidency, 
and, failing him, the Speaker of the House of Representatives. 
To this plan there was the obvious objection that it might 
throw power into the hands of the party opposed to that to 
which the lately deceased President belonged ; and it has there¬ 
fore been now (by an Act of 1886) enacted that on the death 
of a President (including a Vice-President who has succeeded 
to the Presidency) the secretary of state shall succeed, and 
after him other officers of the Administration, in the order of 
their rank. Five Presidents (Harrison, Taylor, Lincoln, Gar¬ 
field, McKinley) have died in office, the three latter killed by 
assassins, and been succeeded by Vice-Presidents, and in the 
first and third of these instances the succeeding Vice-President 
has reversed the policy of his predecessor, and become involved 
in a quarrel with the party which elected him, such as has never 
yet broken out between a man elected to be President and his 
party. In practice very little pains are bestowed on the election 
of a Vice-President. The convention which selects the party 
candidates usually gives the nomination for this post to a man in 
the second rank, sometimes as a consolation to a disappointed 

1 They may have doubted the expediency of displacing him at that moment; 
or their political prepossessions against him may have been restrained by a 
doubt whether the evidence was sufficient to support a quasi-criminal charge. 



52 


THE NATIONAL GOVERNMENT 


PART I 


candidate for the presidential nomination, sometimes to a friend 
of such a disappointed candidate in order to “placate” his 
faction, sometimes to a person from whom large contributions 
to the campaign fund may be expected, sometimes as a com¬ 
pliment to an elderly leader who is personally popular, sometimes 
perhaps even to a man whom it is sought to shelve for the time be¬ 
ing. If the party carries its candidate for President, it also as a 
matter of course carries its candidate for Vice-President, and 
thus if the President happens to die, a man who may, like Tyler 
or Johnson, be of no great personal account, steps into the 
chief magistracy of the nation. 



CHAPTER VI 


PRESIDENTIAL POWERS AND DUTIES 

The powers and duties of the President as head of the Federal 
executive are the following : — 

Command of Federal army and navy and of militia of several 
States when called into service of the United States. 

Power to make treaties, but with advice and consent of the 
Senate, i.e. consent of two-thirds of senators present. 

“ to appoint ambassadors and consuls, judges of Supreme 
court, and all other higher Federal officers, but with 
advice and consent of Senate. 

“ to grant reprieves and pardons for offences against the 
United States, except in cases of impeachment. 

“ to convene both Houses on extraordinary occasions. 

“ to disagree with (i.e. to send back for re-consideration 
any bill or resolution passed by Congress, but subject to 
the power of Congress to finally pass the same, after re¬ 
consideration, by a two-thirds majority in each House. 

Duty to inform Congress of the state of the Union, and to 
recommend measures to Congress. 

“ to commission all the officers of the United States. 

“ to receive foreign ambassadors. 

“ to take care that the laws be faithfully executed. 

These functions group themselves into four classes — 

Those which relate to foreign affairs. 

Those which relate to domestic administration. 

Those which concern legislation. 

The power of appointment. 

The conduct of foreign policy would have been a function of the 
utmost importance had not America, happy America, stood 
apart 1 down till 1898 in a world of her own, unassailable by Euro- 

1 As to the changed position since 1898, see Chap. XCVI., Vol. II. 

53 


54 


THE NATIONAL GOVERNMENT 


PART I 


pean powers, easily superior to the other republics of her conti¬ 
nent, but with no present motive for aggression upon them. The 
President, however, has rarely been allowed a free hand in for¬ 
eign policy. He cannot declare war, for that belongs to Con¬ 
gress, though to be sure he may, as President Polk did in 1845-6, 
bring affairs to a point at which it is hard for Congress to refrain 
from the declaration. Treaties require the approval of two- 
thirds of the Senate; and in order to secure this," it is usually 
necessary for the Executive to be in constant communication 
with the Foreign Affairs Committee of that body. The House 
of Representatives has no legal right to interfere, but it often 
passes resolutions enjoining or disapproving a particular line of 
policy; and sometimes invites the Senate to coincide in these 
expressions of opinion, which then become weightier. The 
President is nowise bound by such resolutions, and has more 
than once declared that he does not regard them. But as some 
treaties, especially commercial treaties, cannot be carried out 
except by the aid of statutes, and as no war can be entered on 
without votes of money, the House of Representatives can some¬ 
times indirectly make good its claim to influence. Many deli¬ 
cate questions, some of them not yet decided^KaVe arisen upon 
these points, which the Constitution has, perhaps unavoidably, 
left in half-light. In all free countries it is most difficult to 
define the respective spheres of the legislature and executive in 
foreign affairs, for while publicity and parliamentary control are 
needed to protect the people, promptitude and secrecy are the 
conditions of diplomatic success. Practically, however, and for 
the purposes of ordinary business, the President is independent 
of the House, while the Senate, though it can prevent his settling 
anything, cannot keep him from unsettling everything. He, 
or possibly his secretary of state, if the President should not have 
leisure to give close or continuous attention to foreign policy, 
retains an unfettered initiative, by means of which he may 
embroil the country abroad or excite passion at home. 

The direct domestic authority of the President is in time of 
peace small, because the larger part of law and administration 
belongs to the State governments, and because Federal admin¬ 
istration is regulated by statutes which leave little discretion to 
the executive. In war time, however, and especially in a civil 
war, it expands with portentous speed. Both as commander-in¬ 
chief of the army and navy, and as charged with the “ faithful 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


55 


execution of the laws,” the President is likely to be led to 
assume all the powers which the emergency requires. How 
much he can legally do without the aid of statutes is disputed, 
for the acts of President Lincoln during the earlier part of the 
War of Secession, including his proclamation suspending the 
writ of Habeas Corpus, were subsequently legalized by Con¬ 
gress ; but it is at least clear that Congress can make him, as 
it did make Lincoln, almost a dictator. And how much the 
war power may include appears in this, that by virtue of it 
and without any previous legislative sanction President Lincoln 
issued his emancipation proclamations of 1862 and 1863, declar¬ 
ing all slaves in the insurgent States to be thenceforth free, 
although these States were deemed to be in point of law still 
members of the Union. 1 

It devolves on the executive as well as on Congress to give 
effect to the provisions of the Constitution whereby a republi¬ 
can form of government is guaranteed to every State : and a 
State may, on the application of its legislature, or executive 
(when the legislature cannot be convened), obtain protection 
against domestic violence. Where, as in Louisiana in 1873, 
two governments dispute by force the control of a State, or 
where an insurrection breaks out, as in Rhode Island in 1840-2, 
or where riots stop the movement of mail trains on a railroad, as 
happened in Illinois in 1894, this power becomes an important 
one, for it involves the employment of troops, and may enable the 
President (since it is usually on him that the duty falls) to estab¬ 
lish the government he prefers to recognize. 2 Fortunately the 
case has been of rare occurrence. 

1 The proclamation was expressed not to apply to States which had not 
seceded, nor to such parts of seceding States as had then already been recon¬ 
quered by the northern armies. Slavery was finally legally extinguished every¬ 
where by the thirteenth constitutional amendment of 1865. 

2 In the Louisiana case Federal troops were employed : in the Rhode Island 
case the President authorized the employment of the militia of Massachusetts 
and Connecticut, but the Rhode Island troops succeeded in suppressing the 
rebellion, whose leader was ultimately convicted of high treason against the 
State and imprisoned. See as to the guarantee of order and republican gov¬ 
ernment in the States, the case of Luther v. Borden (7 How. 42) and the in¬ 
structive article of Judge T. M. Cooley in the International Review for Jan¬ 
uary 1875. He observes : “The obligation to guarantee a republican form of 
government to the States, and to protect them against invasion and domes¬ 
tic violence, is one imposed upon ‘the United States.’ The implication is that 
the duty was not to depend for its fulfilment on the legislative department 
exclusively, but that all departments of the government, or at least more than 
one, were or might be charged with some duty in this regard. It has been 



56 


THE NATIONAL GOVERNMENT 


PART 1 


The President has the right of speaking to the nation by 
addresses or proclamations, a right not expressly conferred 
by the Constitution, but inherent in his position. Occasions 
requiring its exercise are uncommon. On entering office, it is 
usual for the new magistrate to issue an inaugural address, 
stating his views on current public questions. Washington 
also put forth a farewell address, but Jackson’s imitation of 
that famous document was condemned as a piece of vain-glory. 
It is thought bad taste for the President to go round on a politi¬ 
cal stumping tour, and Andrew Johnson injured himself by the 
practice. But he retains the right of making political speeches 
with all the other rights of the ordinary citizen, including that 
of voting at Federal as well as State elections in his own State. 
He is constantly invited to speak on non-partisan occasions, 
and he is free to confer with and advise the leaders of his own 
party. 

The position of the President as respects legislation is a 
peculiar one. The King of England is a member of the Eng¬ 
lish legislature, because Parliament is in theory his Great Council 
which he summons and in which he presides, hearing the com¬ 
plaints of the people, and devising legislative remedies. 1 It 
is as a member of the legislature that he assents to the bills it 
presents to him, and the term “veto power,” since it suggests 
an authority standing outside to approve or reject, does not 
happily describe his right of dealing with a measure which 
has been passed by the council over which he is deemed to pre¬ 
side, though he now no longer appears in it except at the be¬ 
ginning and ending of a session. The American President is 
not a member of either House of Congress. He is a separate 
authority whom the people, for the sake of protecting them¬ 
selves against abuses of legislative power, have associated 
with the legislature for the special purpose of arresting its 


Congress which hitherto has assumed to act upon the guarantee, while appli¬ 
cation for protection against domestic violence has, on the other hand, been 
made to the President. From the nature of the case the judiciary can have 
little or nothing to do with questions arising under this provision of the Con¬ 
stitution.” 

1 It need hardly be said that the actual separation of Parliament into two 
branches, each of which deliberates apart under the presidency of its own 
chairman (the chairman of one House named by the sovereign, whom he repre¬ 
sents, that of the other chosen by the House, but approved by the sovereign), 
does' not exclude the theory that the King, Lords, and Commons constitute the 
common council of the nation. 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


57 


action by his disapproval. 1 So again the King of England can 
initiate legislation. According to the older Constitution, stat¬ 
utes purported to be made, and were till the middle of the 
fifteenth century actually made, by him, but “with the advice 
and consent of the Lords Spiritual and Temporal and of 
Commons.” 2 According to modern practice, nearly all impor¬ 
tant measures are brought into Parliament by his ministers, 
and nominally under his instructions. The American Presi¬ 
dent does not introduce bills, either directly or through his min¬ 
isters, for they do not sit in Congress. 3 All that the Constitu¬ 
tion permits him to do in this direction is to inform Congress 
of the state of the nation, and to recommend the measures 
which his experience in administration shows to be necessary. 
This latter function is discharged by the messages which the 
President addresses to Congress. The most important is that 
sent at the beginning of each session. 

George Washington used to deliver his addresses orally, like 
an English king, and drove in a coach and six to open Congress 
with something of an English king’s state. But Jefferson, when 
his turn came in 1801, whether from republican simplicity, as 
he said himself, or because he was a poor speaker, as his critics 
said, began the practice of sending communications in writing; 
and this has been followed ever since. A message usually — 
for besides the long one at the opening of a congressional 
session, others are sent as occasion requires — discusses the 
leading questions of the moment, indicates mischiefs needing 


1 The term “veto” was not used in the Convention of 1787 : men talked of 
the President’s “qualified negative.” 

2 In the fourteenth century English statutes are expressed to be made by 
the king, “par conseil et par assentement” of the lords and the commonalty. 
The words “by the authority” of the Lords and Commons first appear in the 
eleventh year of Henry VI. (1433), and from the first of Henry VII. (1485) 
downwards a form substantially the same as the present is followed, viz. “Be 
it enacted by the King’s most excellent Majesty, by and with the advice and 
consent of the Lords Spiritual and Temporal, and Commons, and by the au¬ 
thority of the same.” 

3 Nevertheless, the Congressional Globe for July 14, 1862, records that 
“The President (pro tempore ) of the Senate presented the following message 
from the President of the United States : ‘ Fellow Citizens of the Senate and 
the House of Representatives : Herewith is the draft of a bill to compensate 
any State which may abolish slavery within its limits, the passage of which, 
substantially as presented, I respectfully and earnestly recommend. Abraham 
Lincoln.’” The bill was thereupon read a second time, and a debate arose 
as to whether the President had a right to submit bills. In the House the 
message as a whole was referred to the Special Committee on Emancipation. 




58 


THE NATIONAL GOVERNMENT 


PART 1 


a remedy, and suggests the requisite legislation. There are 
however persons in Congress who view with jealousy the action 
of the Executive, though justified by precedent, when a bill 
drafted by a member of the administration is laid before either 
House, and as no minister sits there to explain and defend 
bills and there may be no majority to pass them, the message 
may be a shot in the air without practical result. It is rather 
a manifesto, or declaration of opinion and policy, than a step 
towards legislation. Congress need not take action : members 
go their own ways and bring in their own bills. 

Far more effective is the President’s part in the last stage of 
legislation, for here he finds means provided for carrying out 
his will. When a bill is presented to him, he may sign it, and 
therewith make it law. If, however, he disapproves of it, he re¬ 
turns it within ten days to the House in which it originated, 
with a statement of his grounds of disapproval. If both Houses 
take up the bill again and pass it by a two-thirds majority in 
each House, it becomes law forthwith without requiring the 
President’s signature. 1 If it fails to obtain this majority it 
drops. 

Considering that the arbitrary use, by George III. and his 
colonial governors, of the power of refusing bills passed by a 
colonial legislature had been a chief cause of the Revolution of 
1776, it is to the credit of the Americans that they inserted 
this apparently undemocratic provision (which, however, ex¬ 
isted in the Constitution of Massachusetts of 1780) in the Con¬ 
stitution of 1789. 2 It has worked wonderfully well. Most 
Presidents have employed it sparingly, and only where they 
felt either that there was a case for delay, or that the country 
would support them against the majority in Congress. Per¬ 
verse or headstrong Presidents have been generally defeated 
by the use of the two-thirds vote to pass the bill over their 
objections. Washington “ returned” or vetoed two bills only; 
his successors down till 1830, seven. Jackson made a bolder 
use of his power — a use which his opponents denounced as 
opposed to the spirit of the Constitution : yet until the accession 
of President Cleveland in 1885 the total number vetoed was 

1 If Congress adjourns within the ten days allowed the President for return¬ 
ing the bill it is lost. His retaining it under these circumstances at the end of 
a session is popularly called a “pocket veto.” 

2 The New York State Constitution of 1777 gave a veto to the Governor and 
Judges of the highest Court acting together. 



chap, yi PRESIDENTIAL POWERS AND DUTIES 


59 


only 132 (including the so-called pocket vetoes) in ninety-six 
years. 1 From 1892 to the end of Mr. Roosevelt's second ad¬ 
ministration in 1909 there were 108 vetoes, making in all 541. 
In his fi^st term Mr. Cleveland vetoed 301, the great 
majority being bills for granting pensions to persons who served 
in the northern armies during the War of Secession. Though 
many of these bills had been passed with little or no opposi¬ 
tion, two only were repassed over his veto. The only Presi¬ 
dent who acted recklessly was Andrew Johnson. In the course 
of his three years' struggle with Congress, he returned the 
chief bills passed for carrying out their Reconstruction policy, 
but as the majority opposed to him was large in both Houses, 
these bills were promptly passed over his veto. 

So far from exciting the displeasure of the people by resist¬ 
ing the will of their representatives, a President generally 
gains popularity by the bold use of his veto power. It con¬ 
veys the impression of firmness; it shows that he has a view 
and does not fear to give effect to it. The nation, which has 
often good grounds for distrusting Congress, a body liable to 
be moved by sinister private influences, or to defer to the 
clamour of some noisy section outside, looks to the man of its 
choice to keep Congress in order, and has approved the exten¬ 
sion which practice has given to the power. The President's 
“qualified negative" was proposed by the Convention of 1787 
for the sake of protecting the Constitution, and in particu¬ 
lar, the executive, from Congressional encroachments. It has 
now come to be used on grounds of general expediency, to 
defeat any measure which the Executive deems pernicious 
either in principle or in its probable results. 

The reasons why the veto provisions of the Constitution 
have succeeded appear to be two. One is that the President, 
being an elective and not a hereditary magistrate, is responsible 

1 Of these 132 (some reckon 128), 21 emanated from Johnson and 43 from 
Grant, while John Adams, Jefferson, J. Q. Adams, Van Buren, Taylor, and 
Fillmore sent no veto messages at all. (W. H. Harrison and Garfield died 
before they had any opportunity.) President McKinley vetoed 14 bills, Presi¬ 
dent Roosevelt, 34. Among the most important vetoes were those of several 
reconstruction bills by Johnson (these were re-passed by two-thirds votes), 
that of a paper currency measure, the so-called Inflation Bill, by Grant, and 
that of the Dependent Pension Bill by Cleveland. No bill was passed over 
a veto” until 1845. Until 1885 only 27 had been passed over a veto, 15 of 
these in the time of Johnson. Presidents have occasionally (e.g. Lincoln more 
than once) in signing a bill stated objections to it which Congress has there* 
upon obviated by supplementary legislation. 



60 


THE NATIONAL GOVERNMENT 


PART I 


to the people, and has the weight of the people behind him, 
The people regard him as an indispensable check, not only 
upon the haste and heedlessness of their representatives, the 
faults which the framers of the Constitution chiefly feared, but 
upon their tendency, a tendency whose mischievous force ex¬ 
perience has revealed, to yield either to pressure from any 
section of their constituents, or to temptations of a private 
nature. The other reason is that a veto need never take effect 
unless there is a minority exceeding one-third in one or other 
House of Congress, which agrees with the President. Such a 
minority shares his responsibility and encourages him to resist 
the threats of a majority: while if he has no substantial sup¬ 
port in public opinion, his opposition is easily overborne. Hence 
this arrangement is preferable to a plan, such as that of the 
French Constitution of 1791 1 (under which the king’s veto 
could be overridden by passing a bill in three successive years), 
for enabling the executive simply to delay the passing of a 
measure which may be urgent, or which a vast majority of 
the legislature may desire. In its practical working the presi¬ 
dential veto power furnishes an interesting illustration of the 
tendency of unwritten or flexible constitutions to depart from, 
of written or rigid constitutions to cleave to, the letter of the 
law. The strict legal theory of the rights of the head of the 
state is in this point exactly the same in England and in Amer¬ 
ica. But whereas it is now the undoubted duty of an English 
king to assent to every bill passed by both Houses of Parlia¬ 
ment, however strongly he may personally disapprove its pro¬ 
visions, 2 it is the no less undoubted duty of an American Presi¬ 
dent to exercise his independent judgment on every bill, not 
sheltering himself under the representatives of the people, or 
foregoing his own opinion at their bidding. 3 

1 As the majority in France was unable to attain its will by constitutional 
means without waiting three years, it was the more disposed to overthrow the 
Constitution. 

2 Queen Elizabeth, in a.d. 1597, assented to forty-three bills passed in that 
session, and “advised herself” upon forty-eight. William III. refused his 
assent to five bills. The last instance of the use of the “veto power” in Eng¬ 
land was by Queen Anne in 1707 on a Scotch militia bill. Mr. Todd ( Parlia¬ 
mentary Government in the English Colonies, ii. p. 319) mentions that in 1858 
changes in a private railway bill were compelled by an intimation to its pro¬ 
moters that, if they were not made, the royal power of rejection would b& 
exercised. 

3 The practical disuse of the “veto power” in England is due not merely to 
the decline in the authority of the Crown, but to the fact that, since the Revo, 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


61 


As the President is charged with the whole Federal adminis¬ 
tration, and responsible for its due conduct, he must of course 
be allowed to choose his executive subordinates. But as he 
may abuse this tremendous power the Constitution associates 
the Senate with him, requiring the “advice and consent” of 
that body to the appointments he makes. 1 This confirming 
power has become a political factor of the highest moment. 
The framers of the Constitution probably meant nothing more 
than that the Senate should check the President by rejecting 
nominees who were personally unfit for the post to which he 
proposed to appoint them. The Senate has always, except in 
its struggle with President Johnson, left the President free to 
choose his cabinet ministers. But it early assumed the right 
of rejecting a nominee to any other office on any ground which 
it pleased, as for instance, if it disapproved his political affilia¬ 
tions, or wished to spite the President. Presently the senators 
from the State wherein a Federal office to which the President 
had made a nomination lay, being the persons chiefly interested 
in the appointment, and most entitled to be listened to by the 
rest of the Senate when considering it, claimed to have a para¬ 
mount voice in deciding whether the nomination should be con¬ 
firmed. Their colleagues approving, they then proceeded to 
put pressure on the President. They insisted that before mak¬ 
ing a nomination to an office in any State he should consult the 
senators from that State who belonged to his own party, and 
be guided by their wishes. Such an arrangement benefited all 


lution, the Crown acts only on the advice of responsible ministers, who neces¬ 
sarily command a majority in the House of Commons. A bill therefore cannot 
be passed against the wishes of the ministry unless in the rare case of their 
being ministers on sufferance, and even in that event they would be able to 
prevent its passing by advising the Crown to prorogue or dissolve Parliament 
before it had gone through all its stages. In 1868 a bill (the Irish Church Sus¬ 
pension Bill) was carried through the House of Commons by Mr. Gladstone 
against the opposition of the then Tory ministry which was holding office on 
sufferance ; but it was rejected on second reading by a large majority in the 
House of Lords. Had that House seemed likely to accept it the case would 
have arisen which I have referred to, and the only course for the ministry would 
have been to dissolve Parliament. 

It was urged against the provision in the Constitution of 1789 for the Presi¬ 
dent’s veto that the power would be useless, because in England the Crown 
did not venture to use it. Wilson replied by observing that the English Crown 
had not only practically an antecedent negative, but also a means of defeating 
a bill in the House of Lords by creating new peers. — Elliot’s Debates, ii. p. 472. 

1 Congress is however permitted to vest in the President alone the appoint¬ 
ment to such “inferior offices” as it thinks fit. 




62 


THE NATIONAL GOVERNMENT 


PART I 


senators alike, because each obtained the right of practically 
dictating the appointments to those Federal offices which he 
most cared for, viz. those within his own State; and each was 
therefore willing to support his colleagues in securing the same 
right for themselves as regarded their States respectively. Of 
course when a senator belonged to the party opposed to the 
President, he had no claim to interfere, because places are as a 
matter of course given to party adherents only. When both 
senators belonged to the President’s party they agreed among 
themselves as to the person whom they should require the 
President to nominate. By this system, which obtained the 
name of the Courtesy of the Senate, the President was practi¬ 
cally enslaved as regards appointments, because his refusal to 
be guided by the senator or senators within whose State the 
office lay exposed him to have his nomination rejected. The 
senators, on the other hand, obtained a mass of patronage by 
means of which they could reward their partisans, control the 
Federal civil servants of their State, and build up a faction 
devoted to their interests. 1 Successive Presidents chafed under 
the yoke, and sometimes carried their nominees either by mak¬ 
ing a bargain or by fighting hard with the senators who sought 
to dictate to them. But it was generally more prudent to 
yield, for an offended senator could avenge a defeat by playing 
the President a shrewd trick in some other matter; and as the 
business of confirmation is transacted in secret session, in¬ 
triguers have little fear of the public before their eyes. The 
senators might, moreover, argue that they knew best what 
would strengthen the party in their State, and that the men of 
their choice were just as likely to be good as those whom some 
private friend suggested to the President. Thus the system 
throve and still thrives, though it received a blow from the 
conflict in 1881 between President Garfield and one of the New 
York senators, Mr. Roscoe Conkling. This gentleman, finding 
that Mr. Garfield would not nominate to a Federal office in that 
State the person he proposed, resigned his seat in the Senate, 
inducing his co-senator Mr. Platt to do the same. Both then 
offered themselves for re-election by the State legislature of 

1 As the House of Representatives could not allow the Senate to engross all 
the Federal patronage, there has been a tendency towards a sort of arrange¬ 
ment, according to which the greater State offices belong to the senators, while 
as regards the lesser ones, lying within their respective Congressional districts, 
members of the House are recognized as entitled to recommend candidates. 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


63 


New York, expecting to obtain from it an approval of their 
action, and thereby to cow the President. The State legisla¬ 
ture, however, in which a faction hostile to the two senators 
had become powerful, rejected Mr. Conkling and Mr. Platt in 
ictvour of other candidates. So the victory remained with Mr. 
Garfield, while the nation, which had watched the contest 
eagerly, rubbed its hands in glee at the unexpected denouement. 

It need hardly be added that the “ Courtesy of the Senate ” 
would never have attained its present strength but for the 
growth in and since the time of President Jackson, of the so- 
called Spoils System, whereby holders of Federal offices have 
been turned out at the accession of a new President to make 
way for the aspirants whose services, past or future, he is 
expected to requite or secure by the gift of places. 1 

The right of the President to remove from office has given 
rise to long controversies on which I can only touch. In the 
Constitution there is not a word about removals; and very 
soon after it had come into force the question arose whether, 
as regards those offices for which the confirmation of the Senate 
is required, the President could remove without its consent. 
Hamilton had argued in the Federalist (though there is reason 
to believe that he afterwards changed his opinion) that the 
President could not so remove, because it was not to be sup¬ 
posed that the Constitution meant to give him so immense 
and dangerous a reach of power. Madison argued soon after 
the adoption of the Constitution that it did permit him so to 
remove, because the head of the executive must have subordi¬ 
nates whom he can trust, and may discover in those whom 
he has appointed defects fatal to their usefulness. This was 
also the view of John Marshall. When the question came 
to be settled in the Senate during the presidency of Wash¬ 
ington, Congress, influenced perhaps by respect for his perfect 
uprightness, took the Madisonian view and recognized the power 
of removal as vested in the President alone. So matters stood 
till a conflict arose in 1866 between President Johnson and the 
Republican majority in both Houses of Congress. In 1867, 
Congress, fearing that the President would dismiss a great num¬ 
ber of officials who sided with it against him, passed an Act, 
known as the Tenure of Office Act, which made the consent of 
the Senate necessary to the removal of office-holders, even of the 

1 See next page, and see also Chapter LXV., Vol. II. 



64 


THE NATIONAL GOVERNMENT 


PART I 


President’s (so-called) cabinet ministers, permitting him only 
to suspend them from office during the time when Congress was 
not sitting. The constitutionality of this Act has been much 
doubted, and its policy is now generally condemned. It was 
a blow struck in the heat of passion. When General Grant 
became President in 1869, the Act was greatly modified, and in 
1887 it was repealed. 

How dangerous it is to leave all offices tenable at the mere 
pleasure of a partisan Executive using them for party pur¬ 
poses, has been shown by the fruits of the Spoils System. On 
the other hand a President ought to be free to choose his chief 
advisers and ministers, and even in the lower ranks of the civil 
service it is hard to secure efficiency if a specific cause, such 
as could be proved to a jury, must be assigned for dismissal. 

The Constitution permits Congress to vest in the Courts of 
Law or in “ the heads of departments” the right of appointing 
to “ inferior offices.” This provision has been used to remove 
many posts from the nomination of the President, and by the 
Civil Service Reform Act of 1883 competitive examinations 
were instituted for about 34,000. Of the now enormous number 
of posts, — there were, in 1909, 367,794 officers and employees 
of the executive civil service — nearly two-thirds were in that 
year subject to such examinations. A great number, however, 
including many postmasterships and many places under the 
Treasury, remain in the gift of the President; 1 while even 
as regards those which lie with his ministers, he may be 
invoked if disputes arise between the minister and politicians 
pressing the claims of their respective friends. The business of 
nominating is in ordinary times so engrossing as to leave the 
chief magistrate of the nation little time for his other functions. 

Artemus Ward’s description of Abraham Lincoln swept 
along from room to room in the White House by a rising tide 
of office seekers is hardly an exaggeration. From the 4th of 
March, when Mr. Garfield came into power, till he was shot 
in the July following, he was engaged almost incessantly in 
questions of patronage. 2 Yet the President’s individual judg- 

1 Recently Presidents have under the power given them by statute placed 
large groups of offices under the competitive system. 

2 It is related that a friend, meeting Mr. Lincoln one day during the war, 
observed, “You look anxious, Mr. President; is there bad news from the 
front?” “No,” answered the President, “it isn’t the war: it’s that post¬ 
mastership at Brownsville, Ohio.” 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


65 


ment has little scope. He must reckon with the Senate; he 
must requite the supporters of the men to whom he owes his 
election : he must so distribute places all over the country as 
to keep the local wire-pullers in good humour, and generally 
strengthen the party by “doing something” for those who have 
worked or will work for it. Although the minor posts are 
practically left to the nomination of the senators or congress¬ 
men from the State or district, conflicting claims give infinite 
trouble, and the more lucrative offices are numerous enough to 
make the task of selection laborious as well as thankless and 
disagreeable. In every country statesmen find the dispensing of 
patronage the most disagreeable part of their work; and the 
more conscientious they are, the more does it worry them. No 
one has more to gain from a thorough scheme of civil service 
reform than the President. The present system throws work 
on him unworthy of a fine intellect, and for which a man of fine 
intellect may be ill qualified. On the other hand the President's 
patronage is, in the hands of a skilful intriguer, an engine of far- 
spreading potency. By it he can oblige a vast number of per¬ 
sons, can bind their interests to his own, can fill important 
places with the men of his choice. The authority he has over 
the party in Congress, and therefore over the course of legis¬ 
lation, the influence he exerts on his party in the several States, 
and therefore over the selection of candidates for Congress, is 
strengthened by his patronage. Unhappily, the more his patron¬ 
age is used for these purposes, the more it is apt to be diverted 
from the aim of providing the country with the best officials. 

In quiet times the direct legal power of the President is not 
great, but his influence may be great if he combines tact with 
courage. He is hampered at every turn by the necessity of hu¬ 
mouring his party. The trivial and mechanical parts of his work 
leave him too little leisure for framing large schemes of policy, 
while in carrying them out he needs the co-operation of Congress, 
which may be jealous, or indifferent, or hostile. His power 
to affect legislation largely depends on his personal capacity 
for leadership, and of course also on the strength of his party in 
Congress. In troublous times it is otherwise, for immense re¬ 
sponsibility is then thrown on one who is both the commander- 
in-chief and the head of the civil executive. Abraham Lincoln 
wielded more authority than any single Englishman has done 
since Oliver Cromwell. It is true that the ordinary law was for 




66 


THE NATIONAL GOVERNMENT 


PART I 


some purposes practically suspended during the War of Seces¬ 
sion. But it might again have to be similarly suspended, and 
the suspension makes the President a sort, of dictator. 

Setting aside these exceptional moments, the dignity and 
power of the presidential office, as distinguished from the per¬ 
sonal influence which a particularly able or energetic President 
may exert, did not greatly grow between the time of Andrew 
Jackson, the last President who, not so much through his office 
as by his personal ascendency and the vehemence of his character, 
led and guided his party from the chair, and the death of Presi¬ 
dent McKinley in 1901. Here, too, one sees how a rigid or 
supreme Constitution serves to keep things as they were. 
But for its iron hand, the office would surely, in a country where 
great events have been crowded on one another and opinion 
changes rapidly under the teaching of events, have either risen 
or fallen, have gained strength or lost it. 

In no European country is there any personage to whom the 
President can be said to correspond. If we look at parlia¬ 
mentary countries like England, Italy, Belgium, he resembles 
neither the sovereign nor the prime minister, for the former is 
not a party chief at all, and the latter is palpably nothing else. 
The President enjoys more authority, if less dignity, than a 
European king. He has powers for the moment narrower than 
a European prime minister, but these powers are more secure, 
for they do not depend on the pleasure of a parliamentary 
majority, but run on to the end of his term. One naturally 
compares him with the French president, but the latter has a 
prime minister and cabinet, dependent on the Chamber, at once 
to relieve and to eclipse him : in America the President’s cabi¬ 
net is a part of himself and has nothing to do with Congress. 
The president of the Swiss Confederation is merely the chair¬ 
man for a year of the Administrative Federal Council (Bundes- 
rath), and can hardly be called the executive chief of the nation. 

The difficulty in forming a just estimate of the President’s 
power arises from the fact that it differs so much under ordi¬ 
nary and under extraordinary circumstances. This is a result 
which republics might seem specially concerned to prevent, and 
yet it is specially frequent under republics, as witness the 
cases of ancient Rome and of the Italian cities in the Middle 
Ages. In ordinary times the President may be compared to 
the senior or managing clerk in a large business establishment, 



chap, vi PRESIDENTIAL POWERS AND DUTIES 


67 


whose chief function is to select his subordinates, the policy oi 
the concern being in the hands of the board of directors. But 
when foreign affairs become critical, or when disorders within 
the Union require his intervention, — when, for instance, it 
rests with him to put down an insurrection or to decide which 
of two rival State governments he will recognize and support 
by arms, everything may depend on his judgment, his courage, 
and his hearty loyalty to the principles of the Constitution. 

It used to be thought that hereditary monarchs were strong 
because they reigned by a right of their own, not derived from 
the people. A President is strong for the exactly opposite 
reason, because his rights come straight from the people. We 
shall have frequent occasion to observe that nowhere is the 
rule of public opinion so complete as in America, or so direct ; 
that is to say, so independent of the ordinary machinery of 
government. Now the President is deemed to represent the 
people no less than do the members of the legislature. Public 
opinion governs by and through him no less than them, and 
makes him powerful even against a popularly elected Congress. 
This is a fact to be remembered by those Europeans who seek 
in the strengthening of the hereditary principle a cure for the 
faults of government by assemblies. And it also suggests the 
risk that attaches to power vested in the hands of a leader 
directly chosen by the people. A high authority observes : 1 — 

“Our holiday orators delight with patriotic fervour to draw distinc¬ 
tions between our own and other countries, and to declare that here the 
law is master and the highest officer but the servant of the law, while 
even in free England the monarch is irresponsible and enjoys the most 
complete personal immunity. But such comparisons are misleading, 
and may prove mischievous. In how many directions is not the execu¬ 
tive authority in America practically superior to what it is in England ! 
And can we say that the President is really in any substantial sense 
any more the servant of the law than is the Queen? Perhaps if we 
were candid we should confess that the danger that the executive may 
be tempted to a disregard of the law may justly be believed greater in 

1 Judge T. M. Cooley, in the International Review for Jan. 1875. He quotes 
the words of Edward Livingston : “The gloss of zeal for the public service is 
always spread over acts of oppression, and the people are sometimes made to 
consider that as a brilliant exertion of energy in their favour which, when 
viewed in its true light, would be found a fatal blow to their rights. In no 
government is this effect so easily produced as in a free republic ; party spirit, 
inseparable from its existence, aids the illusion, and a popular leader is allowed 
in many instances impunity, and sometimes rewarded with applause, for acts 
which would make a tyrant tremble on his throne.” 



68 


THE NATIONAL GOVERNMENT 


PART 1 


America than in countries where the chief magistrate comes to his office 
without the selection of the people ; and where consequently their 
vigilance is quickened by a natural distrust.” 

Although few Presidents have shown any disposition to strain 
their authority, it has often been the fashion in America to be 
jealous of the President's action, and to warn citizens against 
what is called “the one man power." General Ulysses S. Grant 
was hardly the man to make himself a tyrant, yet the hostility 
to a third term of office which moved many people who had not 
been alienated by the faults of his administration, rested not 
merely on reverence for the example set by Washington, but 
also on the fear that a President repeatedly chosen would become 
dangerous to republican institutions. This particular alarm 
seems to a European groundless. I do not deny that a really 
great man might exert ampler authority from the presidential 
chair than most of its occupants have done. The same ob¬ 
servation applies to the Popedom and even to the English 
throne. The President has a position of immense dignity, an 
unrivalled platform from which to impress his ideas (if he has 
any) upon the people. But it is hard to imagine a President 
overthrowing the existing Constitution. He has no standing 
army, and he cannot create one. Congress can checkmate him 
by stopping supplies. There is no aristocracy to rally round 
him. Every State furnishes an independent centre of resist¬ 
ance. If he were to attempt a coup d’etat, it could only be by 
appealing to the people against Congress, and Congress could 
hardly, considering that it is re-elected every two years, at¬ 
tempt to oppose the people. One must suppose a condition 
bordering on civil war, and the President putting the resources 
of the executive at the service of one of the intending belliger¬ 
ents, already strong and organized, in order to conceive a case 
in which he will be formidable to freedom. If there be any 
danger, it would seem to lie in another direction. The larger 
a community becomes the less does it seem to respect an assem¬ 
bly, the more is it attracted by an individual man. A bold 
President who knew himself to be supported by a majority in 
the country, might be tempted to override the law, and deprive 
the minority of the protection which the law affords it. He 
might be a tyrant, not against the masses, but with the masses. 
But nothing in the present state of American politics gives 
weight to such apprehensions. 



CHAPTER VII 


OBSERVATIONS ON THE PRESIDENCY 

Although the President has been, not that independent good 
citizen whom the framers of the Constitution contemplated, but, 
at least since 1829, a party man, sometimes not much above 
the average in character or abilities, the office has attained 
the main objects for which it was created. Such mistakes as 
have been made in foreign policy, or in the conduct of the 
administrative departments, have been rarely owing to the 
constitution of the office or to the errors of its holder. This is 
more than one who should review the history of Europe during 
the last hundred years could say of any European monarchy. 
Nevertheless, the faults chargeable on hereditary kingship, 
faults more serious than Englishmen, who have watched with 
admiration the wisdom of the Crown ever since the accession of 
Queen Victoria in 1837, usually realize, must not make us over¬ 
look certain defects incidental to the American presidency, per¬ 
haps to any plan of vesting the headship of the State in a 
person elected for a limited period. 

In a country where there is no hereditary throne nor heredi¬ 
tary aristocracy, an office raised far above all other offices 
offers too great a stimulus to ambition. This glittering prize, 
always dangling before the eyes of prominent statesmen, has a 
power stronger than any dignity under a European crown to 
lure them (as it lured Clay and Webster) from the path of 
straightforward consistency. One who aims at the presidency 
•— and all prominent politicians do aim at it — has the strongest 
possible motives to avoid making enemies. Now a great states¬ 
man ought to be prepared to make enemies. It is one thing 
to try to be popular — an unpopular man will be uninfluential 
— it is another to seek popularity by courting every section of 
your party. This is the temptation of presidential aspirants. 

A second defect is that the presidential election, occurring 
once in four years, throws the country for several months into 

69 


70 


THE NATIONAL GOVERNMENT 


PART I 


a state of turmoil, for which there may be no occasion. Per¬ 
haps there are no serious party issues to be decided, perhaps 
the best thing would be that the existing Administration should 
pursue the even tenor of its way. The Constitution, however, 
requires an election to be held, so the whole costly and compli¬ 
cated machinery of agitation is put in motion; and if issues do 
not exist, they have to be created. 1 Professional politicians 
who have a personal interest in the result, because it involves 
the gain or loss of office to themselves, conduct what is called 
a “campaign,” and the country is forced into a (possibly facti¬ 
tious) excitement from midsummer, when each party selects 
the candidate whom it will nominate, to the first week of No¬ 
vember, when the contest is decided. There is some political 
education in the process, but it is bought dearly, not to add 
that business, and especially finance, is disturbed, and much 
money spent unproductively. 

Again, these regularly recurring elections produce a discon¬ 
tinuity of policy. Even when the new President belongs to 
the same party as his predecessor, he usually nominates a new 
cabinet, having to reward his especial supporters. Many of 
the inferior offices are changed; men who have learned their 
work make way for others who have everything to learn. If 
the new President belongs to the opposite party, the change 
of officials is far more sweeping, and involves larger changes of 
policy. The evil would be more serious were it not that in 
foreign policy, where the need for continuity is greatest, the 
United States has had comparatively little to do, and that 
the co-operation of the Senate in this department qualifies 
the divergence of the ideas of one President from those of 
another. 

Fourthly. The fact that he has been deemed re-eligible once, 
but (practically) only once (at least in continuation of his exist¬ 
ing term 2 ), has operated unfavourably on the President. He is 


1 In England, also, there is necessarily a campaign once at least in every 
five years, when a general election takes place, and sometimes oftener. But 
note that in England (1) this is the only season of disturbance, whereas in Amer¬ 
ica the Congressional elections furnish a second; (2) the period is usually 
shorter (three to six weeks, not four months) ; (3) there are usually real and mo¬ 
mentous issues, dividing the great parties, which the nation has to settle. 

2 See p. 45 supra. There was however some talk of nominating Mr. Cleve¬ 
land after an interval from his second term, and no precedent, except the failure 
in Grant’s case, exists to dissuade this. 



chap, vii OBSERVATIONS ON THE PRESIDENCY 


71 


tempted to play for a re-nomination by pandering to sections of 
his own party, or using his patronage to conciliate influential 
politicians. On the other hand, if he is in his second term of 
office, he has no longer much motive to regard the interests 
of the nation at large, because he sees that his own political 
death is near. It may be answered that these two evils will 
correct one another, that the President will in his first term 
be anxious to win the respect of the nation, in his second he will 
have no motive for yielding to the pressure of party wire¬ 
pullers ; while in reply to the suggestion that if he were held 
ineligible for the next term, but eligible for any future term, both 
sets of evils might be avoided, and both sets of benefits secured, 
it can be argued that such a provision would make that 
breach in policy which may now happen only once in eight 
years, necessarily happen once in four years. It would, for 
instance, have prevented the re-election of Abraham Lincoln in 
1864. 

The founders of the Southern Confederacy of 1861-65 were 
so much impressed by the objections to the present system 
that they provided that their President should hold office for 
six years, but not be re-eligible. It has recently been suggested 
that the Constitution might be amended in this sense. 

Fifthly. An outgoing President is a weak President. Dur¬ 
ing the four months of his stay in office after his successor 
has been chosen, he declines, except in cases of extreme neces¬ 
sity, to take any new departure, to embark on any executive 
policy which cannot be completed before he quits office. This 
is, of course, even more decidedly the case if his successor belongs 
to the opposite party. 1 

Lastly. The result of an election may be doubtful, not from 
equality of votes, for this is provided against, but from a dis¬ 
pute as to the validity of votes given in or reported from the 

1 Freeman (History of Federal Government, 302) adduces from Poly¬ 
bius (iv. 6, 7) a curious instance showing that the same mischief arose 

in the Achaian League : “The ^tolians chose for an inroad the time when the 
official year (of the Achaian General) was drawing to its close, as a time when 
the Achaian counsels were sure to be weak. Aratos, the General elect, was 
not yet in office; Timoxenos, the outgoing General, shrank from energetic 
action so late in his year, and at last yielded up his office to Aratos before the 
legal time.” This effort of Timoxenos to escape from the consequences of the 
system could not have occurred in governments like those, of Rome, England, 
or the United States, where “the reign of law” is far stricter than it was in 
the Greek republics. 



72 


THE NATIONAL GOVERNMENT 


PART 1 


States. The difficulty which arose in 1876 cannot, owing to 
the legislation of 1887, recur in quite the same form. But 
cases may arise in which the returns from a State of its electoral 
votes will, because notoriously obtained by fraud or force, 
fail to be recognized as valid by the party whose candidate 
they prejudice. Few presidential elections have passed without 
charges of this kind, and these charges are not always unfounded. 
Should manifest unfairness coincide with popular excitement 
over a really important issue, the self-control of the people, 
which in 1877, when no such issue was involved, held in check 
the party passions of their leaders, might prove unequal to the 
strain of such a crisis. 

Further observations on the President, as a part of the ma¬ 
chinery of government, will be better reserved for the discussion 
of the relations of the executive and legislative departments. 
I will therefore only observe here that, even when we allow for 
the defects last enumerated, the presidential office, if notone 
of the best features of the American Constitution, is nowise 
to be deemed a failure. The problem of constructing a stable 
executive in a democratic country is indeed so immensely diffi¬ 
cult that anything short of a failure deserves to be called a 
success. Now the President has, for more than a century, 
carried on the internal administrative business of the nation 
with due efficiency. As he has the ear of the country, he can 
force upon its attention questions which Congress may be neglect¬ 
ing, and if he be a man of constructive ideas and definite aims, 
he may guide and inspire its political thought. Once or twice, 
as when Jefferson purchased Louisiana, and Lincoln emancipated 
the slaves in the revolted States, he has courageously ventured 
on stretches of authority, held at the time to be doubtfully con¬ 
stitutional, yet necessary, and approved by the judgment of 
posterity. He has kept the machinery working quietly and 
steadily when Congress has been distracted by party strife, or 
paralyzed by the dissensions of the two Houses, or enfeebled by 
the want of first-rate leaders. The executive has been able, at 
moments of peril, to rise almost to a dictatorship, as during 
the War of Secession, and when peace returned, to sink back 
into its proper constitutional position. It has shown no ten¬ 
dency so far to rise above and override other authorities as to 
pave the way for a monarchy. 

Europeans are struck by the faults of a plan which plunges 



chap, yii OBSERVATIONS ON THE PRESIDENCY 


73 


the nation into a whirlpool of excitement once every four years, 
and commits the headship of the State to a party leader chosen 
for a short period. 1 But there is another aspect in which the 
presidential election may be regarded, and one whose impor¬ 
tance is better appreciated in America than in Europe. The 
election is a solemn periodical appeal to the nation to review 
its condition, the way in which its business has been carried 
on, the conduct of the two great parties. It stirs and rouses 
the nation as nothing else does, forces every one not merely to 
think about public affairs but to decide how he judges the 
parties. It is a direct expression of the will of twelve mil¬ 
lions of voters, a force before which everything must bow. 
It refreshes the sense of national duty; and at great crises 
it intensifies national patriotism. A presidential election is 
sometimes, as in 1800, and as again most notably in 1860 and 
1864, a turning-point in history. In form it is nothing more 
than the choice of an administrator who cannot influence policy 
otherwise than by refusing his assent to bills. In reality it is 
the deliverance of the mind of the people upon all such questions 
as they feel able to decide. A curious parallel may in this respect 
be drawn between it and a general election of the House of Com¬ 
mons in England. A general election is in form a choice of 
representatives, with reference primarily to their views upon 
various current questions. In substance it may be a national 
vote, committing executive power to some one prominent 
statesman. Thus the elections of 1868, 1874, 1880, were 
practically votes of the nation to place Mr. Gladstone or Mr. 
Disraeli at the head of the government. So conversely in 
America, a presidential election, which purports to be merely 
the selection of a man, is often in reality a decision upon issues 
of policy, a condemnation of the course taken by one party, 
a mandate to the other to follow some different course. 

The choice of party leaders as Presidents has in America 
caused less mischief than might have been expected. Never¬ 
theless, those who have studied the scheme of constitutional 
monarchy as it works in England, or Belgium, or Italy, or the 
reproductions of that scheme in British colonies, where the 

1 Such faults as belong to the plan of popular election are not necessarily 
incident to the existence of a President; for in France the chief magistrate is 
chosen by the Chambers, and the interposition between him and the legislature 
of a responsible ministry serves to render his position less distinctly partisan. 




74 


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Crown-appointed governor stands outside the strife of factions 
as a permanent official, will, when they compare the institu¬ 
tions of these countries with the American presidency, be im¬ 
pressed by the merits of a plan which does not unite all the dignity 
of office with all the power of office, and which, by placing 
the titular chief of the executive above and apart from party, 
makes the execution of the law appear to proceed from a non¬ 
partisan source, and tells the civil and military services that 
they are the servants rather of the nation than of any section 
of the nation, suggesting to them that their labours ought to be 
rendered with equal heartiness to whatever party may hold the 
reins of government. Party government may be necessary. 
So far as we can see, it is necessary. But it is an unfortunate 
necessity; and whatever tends to diminish its mischievous in¬ 
fluence upon the machinery of administration, and to prevent 
it from obtruding itself upon foreign states; whatever holds 
up a high ideal of devotion to the nation as a majestic whole, 
living on from century to century while parties form and dis- 
solve and form again, strengthens and ennobles the common¬ 
wealth and all its citizens. 

Such an observation of course applies only to monarchy as a 
political institution. Socially regarded, the American presi¬ 
dency deserves nothing but admiration. The President is 
simply the first citizen of a free nation, depending for his dignity 
on no title, no official dress, no insignia of state. It was origi¬ 
nally proposed, doubtless in recollection of the English Common¬ 
wealth of the seventeenth century, to give him the style of 
“Highness,” and “Protector of the Liberties of the United 
States.” Others suggested “Excellency ”; 1 and Washington 
is said to have had leanings to the Dutch style of “High Mighti¬ 
ness.” The head of the ruling President does not appear on 
coins, nor even on postage stamps . 2 His residence at Wash¬ 
ington, formerly called officially “the Executive Mansion,” but 
now “the White House,” a handsome building with two low 

1 In ridicule of this the more democratic members of Congress proposed to 
call that more ornamental than useful officer the Vice-President “His Super¬ 
fluous Excellency.” 

2 The portraits on postage stamps are those of several past Presidents — 
Washington, Jefferson, Jackson, Taylor, Lincoln, Grant, Garfield, McKinley, 
and of a few eminent statesmen, such as Franklin, Hamilton, Clay, Webster, 
Scott, Perry, Stanton. Sometimes a historical event is depicted, such as 
the founding of Jamestown in Virginia when the tercentenary of that event ar¬ 
rived in 1907. 



chap, vii OBSERVATIONS ON THE PRESIDENCY 


75 


wings and a portico supported by Corinthian pillars, said to 
have been modelled upon the Duke of Leinster's house at Carton 
in Kildare, stands in a shrubbery, and has the air of a large sub¬ 
urban villa rather than of a palace. The rooms, though spacious, 
are not spacious enough for the crowds that attend the public 
receptions. The President's salary, which is only $75,000 
(£15,000) a year, does not permit display, nor indeed is display 
expected from him. 

Washington, which even so lately as the days of the war, 
was a wilderness of mud and negroes, with a few big houses 
scattered here and there, has now become one of the handsomest 
capitals in the world, and cultivates the graces and pleasures 
of life with eminent success. Besides its political society and 
its diplomatic society, it has grown to be a winter resort for men 
of wealth and leisure from all over the continent. It is a place 
where a court might be created, did any one wish to create it. 
No President has made the attempt; and as the earlier career 
of the chief magistrate and his wife has seldom qualified them 
to lead the world of fashion, none is likely to make it. How¬ 
ever, the action of the wife of President Hayes, an estimable 
lady, whose ardent advocacy of temperance caused the formation 
of many total abstinence societies, called by her name, showed 
that there may be fields in which a President's consort can turn 
her exalted position to good account, while of course such gifts 
or charms as she possesses tend to increase his popularity. 

PTo a European observer, weary of the slavish obsequiousness 
affl lip-deep adulation with which the members of reigning 
families are treated on the eastern side of the Atlantic, fawned 
on in public and carped at in private, the social relations of an 
American President to his people are eminently refreshing. 
There is a great respect for the office, and a corresponding 
respect for the man as the holder of the office, if he has done 
nothing to degrade it. There is no servility, no fictitious self- 
abasement on the part of the citizens, but a simple and hearty 
deference to one who represents the majesty of the nation, the 
sort of respect which the proudest Roman paid to the consul¬ 
ship, even if the particular consul was, like Cicero, a “new man. 
The curiosity of the visitors who throng the White House on 
reception days is sometimes too familiar; but this fault tends 
to disappear, and Presidents have now more reason to complain 
of the persecutions they endure from an incessantly observant 



76 


THE NATIONAL GOVERNMENT 


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journalism. / After oscillating between the ceremonious state 
of GeorgeAVashington, who drove to open Congress in his coach 
and six, with outriders and footmen in livery, and the ostenta¬ 
tious plainness of Citizen Jefferson, who would ride up alone 
and hitch his horse to the post at the gate, 1 the President has 
settled down into an attitude between that of the mayor of a 
great English town on a public occasion, and that of a European 
cabinet minister on a political tour. He is followed about and 
feted, and in every way treated as the first man in the company ; 
but the spirit of equality which rules the country has sunk too 
deep into every American nature for him to expect to be addressed 
with bated breath and whispering reverence. He has no mili¬ 
tary guard, no chamberlains or grooms-in-waiting; his every¬ 
day life is simple; his wife enjoys precedence over all other 
ladies, but is visited and received just like other ladies; he is 
surrounded by no such pomp and enforces no such etiquette 
as that which belongs to the governors even of second-class 
English colonies, not to speak of the viceroys of India and 
Ireland. 

It begins to be remarked in Europe that monarchy, which 
used to be deemed politically dangerous but socially useful, has 
now, since its claws have been cut, become politically valuable, 
but of doubtful social utility. In the United States the most 
suspicious democrat — and there are democrats who complain 
that the office of President is too monarchical — cannot accuse 
the chief magistracy of having tended to form a court, much 
less to create those evils which thrive in the atmosphere of 
European courts. No President dare violate social decorum as 
European sovereigns have often done. If he did, he would be 
the first to suffer. 

1 Mr. H. Adams (First Administration of Jefferson, vol. i. p. 197) has, how¬ 
ever, shown that at his inauguration Jefferson walked. 



CHAPTER VIII 


WHY GREAT MEN ARE NOT CHOSEN PRESIDENTS 

Europeans often ask, and Americans do not always explain, 
how it happens that this great office, the greatest in the world, 
unless we except the Papacy, to which any one can rise by his 
own merits, is not more frequently filled by great and striking 
men. In America, which is beyond all other countries the 
country of a “career open to talents,” a country, moreover, in 
which political life is unusually keen and political ambition 
widely diffused, it might be expected that the highest place 
would always be won by a man of brilliant gifts. But from the 
time when the heroes of the Revolution died out with Jefferson 
and Adams and Madison, no person except General Grant, had, 
down till the end of last century, reached the chair whose name 
would have been remembered had he not been President, and 
no President except Abraham Lincoln had displayed rare or 
striking qualities in the chair. Who now knows or cares to 
know anything about the personality of James K. Polk or Frank¬ 
lin Pierce? The only thing remarkable about them is that 
being so commonplace they should have climbed so high. 

Several reasons may be suggested for the fact, which Ameri¬ 
cans are themselves the first to admit. 

One is that the proportion of first-rate ability drawn into 
politics is smaller in America than in most European countries. 
This is a phenomenon whose causes must be elucidated later : 
in the meantime it is enough to say that in France, where the 
half-revolutionary conditions that lasted for some time after 
1870 made public life exciting and accessible ; in Germany, 
where an admirably-organized civil service cultivates and 
develops statecraft with unusual success; in England, where 
many persons of wealth and leisure seek to enter the polit¬ 
ical arena, while burning questions touch the interests of all 
classes and make men eager observers of the combatants, the 
total quantity of talent devoted to parliamentary or admin- 

77 


78 


THE NATIONAL GOVERNMENT 


PART I 


istrative work has been larger, relatively to the population, than 
in America, where much of the best ability, both for thought and 
for action, for planning and for executing, rushes into a field 
which is comparatively narrow in Europe, the business of devel¬ 
oping the material resources of the country. 

Another is that the methods and habits of Congress, and 
indeed of political life generally, give fewer opportunities for 
personal distinction, fewer modes in which a man may commend 
himself to his countrymen by eminent capacity in thought, in 
speech, or in administration, than is the case in the free coun¬ 
tries of Europe. This is a point to be explained in later chapters. 
I note here in passing what will there be dwelt on. 

A third reason is that eminent men make more enemies, and 
give those enemies more assailable points, than obscure men do. 
They are therefore in so far less desirable candidates. It is 
true that the eminent man ha^ also made more friends, that his 
name is more widely known, and may be greeted with louder 
cheers. Other things being equal, the famous man is prefer¬ 
able. But other things never are equal. The famous man has 
probably attacked some leaders in his own party, has supplanted 
others, has expressed his dislike to the crotchet of some active 
section, has perhaps committed errors which are capable of 
being magnified into offences. No man stands long before the 
public and bears a part in great affairs without giving openings 
to censorious criticism. Fiercer far than the light which beats 
upon a throne is the light which beats upon a presidential can¬ 
didate, searching out all the recesses of his past life. Hence, 
when the choice lies between a brilliant man and a safe man, 
the safe man is preferred. Party feeling, strong enough to carry 
in on its back a man without conspicuous positive merits, is 
not always strong enough to procure forgiveness for a man 
with positive faults. 

A European finds that this phenomenon needs in its turn to 
be explained, for in the free.countries of Europe brilliancy, be 
it eloquence in speech, or some striking achievement in war or 
administration, or the power through whatever means of some¬ 
how impressing the popular imagination, is what makes a leader 
triumphant. Why should it be otherwise in America ? Because 
in America party loyalty and party organization have been 
hitherto so perfect that any one put forward by the party will 
get the full party vote if his character is good and his “record,” 




CHAP. VIII WHY GREAT MEN ARE NOT CHOSEN 


79 


as they call it, unstained. The salt, candidate may not draw 
in quite so many votes from the moderate men of the other 
side as the brilliant one would, but he will not lose nearly so 
many from his own ranks. Even those who admit his mediocrity 
will vote straight when the moment for voting comes.[Besides, j 
the ordinary American voter does not object to mediocrity. 
He has a lower conception of the qualities requisite to make a 
statesman than those who direct public opinion in Europe have. 
He likes his candidate to be sensible, vigorous, and, above all, 
what he calls “magnetic,” and does not value, because he sees 
no need for, originality or profundity, a fine culture or a wide 
knowledge."^Candidates are selected to be run for nomination 
by knots ofpersons who, however expert as party tacticians, are 
usually commonplace men ; and the choice between those selected 
for nomination is made by a very large body, an assembly of 
nearly a thousand delegates from the local party organizations 
over the country, who are certainly no better than ordinary 
citizens. How this process works will be seen more fully when 
I come to speak of those Nominating Conventions which are 
so notable a feature in American politics. 

It must also be remembered that the merits of a President 
are one thing and those of a candidate another thing. An 
eminent American is reported to have said to friends who 
wished to put him forward, “Gentlemen, let there be no mistake. 

I should make a good President, but a very bad candidate.” 
Now to a party it is more important that its nominee should 
be a good candidate than that he should turn out a good Presi¬ 
dent. A nearer danger is a greater danger. As Saladin says 
in The Talisman, “A wild cat in a chamber is more dangerous 
than a lion in a distant desert.” It will be a misfortune to the 
party, as well as to the country, if the candidate elected should 
prove a bad President. But it is a greater misfortune to the 
party that it should be beaten in the impending election, for 
the evil of losing national patronage will have come four years 
sooner. “B” (so reason the leaders), “ who is one of our possible 
candidates, may be an abler man than A, who is the other. But 
we have a better chance of winning with A than with B, while X, 
the candidate of our opponents, is anyhow no better than A. 
We must therefore run A.” This reasoning is all the more for¬ 
cible because the previous career of the possible candidates has 
generally made it easier to say who will succeed as a candidate 





80 


THE NATIONAL GOVERNMENT 


PART I 


than who will succeed as a President; and because the wire¬ 
pullers with whom the choice rests are better judges of the former 
question than of the latter. 

After all, too, a President need not be a man of brilliant 
intellectual gifts. His main duties are to be prompt and firm 
in securing the due execution of the laws and maintaining the 
public peace, careful and upright in the choice of the executive 
officials of the country. Eloquence, whose value is apt to be 
overrated in all free countries, imagination, profundity of thought 
or extent of knowledge, are all in so far a gain to him that they 
make him “a bigger man,” and help him to gain over the nation 
an influence which, if he be a true patriot, he may use for its 
good. But they are not necessary for the due discharge in 
ordinary times of the duties of his post. Four-fifths of his work 
is the same in kind as that which devolves on the chairman 
of a commercial company or the manager of a railway, the work 
of choosing good subordinates, seeing that they attend to their 
business, and taking a sound practical view of such administra¬ 
tive questions as require his decision. Firmness, common sense, 
and most of all, honesty, an honesty above all suspicion of per¬ 
sonal interest, are the qualities which the country chiefly needs 
in its first magistrate. 

So far we have been considering personal merits. But in 
the selection of a candidate many considerations have to 
be regarded besides the personal merits, whether of a 
candidate, or of a possible President. The chief of these 
considerations is the amount of support which can be se¬ 
cured from different States or from different “sections” of the 
Union, a term by which the Americans denote groups of States 
with a broad community of interest. State feeling and sectional 
feeling are powerful factors in a presidential election. The 
Middle West and Northwest, including the States from Ohio to 
Montana, is now the most populous section of the Union, and 
therefore counts for most in an election. It naturally con¬ 
ceives that its interests will be best protected by one who 
knows them from birth and residence. Hence prima facie a 
man from that section makes the best candidate. A large 
State casts a heavier vote in the election; and every State is 
of course more likely to be carried by one of its own children 
than by a stranger, because his fellow-citizens, while they 
feel honoured by the choice, gain also a substantial advan- 



CHAP. VIII WHY GREAT MEN ARE NOT CHOSEN 


81 


tage, having a better prospect of such favours as the adminis¬ 
tration can bestow. Hence, cceteris paribus, a man from a 
large State is preferable as a candidate. The problem is further 
complicated by the fact that some States are already safe for 
one or other party, while others are doubtful. The North¬ 
western and New England States have usually tended to go 
Republican; while nearly all of the Southern States have, 
since 1877, been pretty certain to go Democratic. Cceteris 
paribus, a candidate from a doubtful State, such as New York 
and Indiana have usually been, is to be preferred. 

Other minor disqualifying circumstances, require less expla¬ 
nation. A Roman Catholic, or an avowed disbeliever in Chris¬ 
tianity, would be an undesirable candidate. For many years 
after the Civil War, any one who had fought, especially if he 
fought with distinction, in the Northern army, enjoyed great 
advantages, for the soldiers of that army rallied to his name. 
The two elections of General Grant, who knew nothing of 
politics, and the fact that his influence survived the faults 
of his administration, are evidence of the weight of this con¬ 
sideration. 

Long ago on a railway journey in the Far West I fell in with 
two newspaper men from the State of Indiana, who were taking 
their holiday. The conversation turned on the next presi¬ 
dential election. They spoke hopefully of the chances for 
nomination by their party of an Indiana man, a comparatively 
obscure person, whose name I had never heard. I expressed 
some surprise that he should be thought of. They observed 
that he had done well in State politics, that there was nothing 
against him, that Indiana would work for him. “But,” I re¬ 
joined, “ought you not to have a man of more commanding 
character? There is Senator A. Everybody tells me that he 
is the shrewdest and most experienced man in your party, and 
that he has a perfectly clean record. Why not run him?” 
“Why, yes,” they answered, “that is all true. But you see 
he comes from a small State, and we have got that State already. 
Besides, he wasn’t in the war. Our man was. Indiana’s vote 
is worth having, and if our man is run, we can carry Indiana.” 

“Surely the race is not to the swift, nor the battle to the 
strong, neither yet bread to the wise, nor yet riches to men of 
understanding, nor yet favour to men of skill, but time and 
chance happeneth to them all.” 




82 


THE NATIONAL GOVERNMENT 


PART I 


These secondary considerations do not always prevail. In¬ 
tellectual ability and strength of character must influence the 
choice of a candidate. When a man has once impressed him¬ 
self on the nation by force, courage, and rectitude, the influence 
of these qualities may be decisive. They naturally count for 
most when times are critical. Reformers declare that their 
weight will go on increasing as the disgust of good citizens 
with the methods of professional politicians increases. But 
for many generations past it is not the greatest men in the Roman 
Church that have been chosen Popes, nor the most brilliant men 
in the Anglican Church that have been appointed Archbishops 
of Canterbury. 

Although several Presidents have survived their departure 
from office by many years, only two, John Quincy Adams and 
recently Mr. Roosevelt, have played a part in politics after 
quitting the White House. 1 It may be that the ex-President 
has not been prominent before his accession to office; or that 
he does not care to exert himself after he has dropped the great 
prize, and found (as most have found) how little of a prize it is. 
Something, however, must also be ascribed to other features of 
the political system of the country. It is often hard to find a 
vacancy in the representation of a given State through which to 
re-enter Congress; it is disagreeable to recur to the arts by 
which seats are secured. Past greatness is rather an encum¬ 
brance than a help to resuming a political career. Exalted 
power, on which the unsleeping eye of hostile critics was fixed, 
has probably disclosed all a President’s weaknesses, and has 
either forced him to make enemies by disobliging adherents, or 
exposed him to censure for subservience to party interests. He 
is regarded as having had his day; he belongs already to the 
past, and unless, like Grant, he is endeared to the people by the 
memory of some splendid service, or is available to his party as a 
possible candidate for a further term of office, he may sink into 
the crowd or avoid neglect by retirement. Possibly he may 
deserve to be forgotten; but more frequently he is a man of 
sufficient ability and character to make the experience he has 
gained valuable to the country, could it be retained in a place 


1 J. Q. Adams was elected to the House of Representatives within three 
years from his presidency, and there became for seventeen years the fearless 
and formidable advocate of what may be called the national theory of the 
Constitution against the slaveholders. 




CHAP. VIII WHY GREAT MEN ARE NOT CHOSEN 


83 


where he might turn it to account. They managed things better 
at Rome, gathering into their Senate all the fame and expe¬ 
rience, all the wisdom and skill, of those who had ruled and 
fought as consuls and praetors at home and abroad. 

We may now answer the question from which we started. 
Great men have not often been chosen Presidents, first because 
great men are rare in politics ; secondly, because the method of 
choice may not bring them to the top ; thirdly, because they are 
not, in quiet times, absolutely needed. Let us close by observing 
that the Presidents, regarded historically, fall into three periods, 
the second inferior to the first, the third rather better than the 
second. 

Down till the election of Andrew Jackson in 1828, all the 
Presidents had been statesmen in the European sense of the 
word, men of education, of administrative experience, of a cer¬ 
tain largeness of view and dignity of character. All except the 
first two had served in the great office of secretary of state ; all 
were known to the nation from the part they had played. In 
the second period, from Jackson till the outbreak of the Civil 
War in 1861, the Presidents were either mere politicians, such as 
Van Buren, Polk, or Buchanan, or else successful soldiers, 1 such as 
Harrison or Taylor, whom their party found useful as figure¬ 
heads. They were intellectual pigmies beside the real leaders 
of that generation — Clay, Calhoun, and Webster. A new 
series begins with Lincoln in 1861. He and General Grant, his 
successor, who cover sixteen years between them, belong to the 
history of the world. Even the less distinguished Presidents 
of this period contrast favourably with the Polks and Pierces of 
the days before the war, if they are not, like the early Presi¬ 
dents, the first men of the country. If we compare the twenty 
Presidents who were elected to office between 1789 and 
1900 with the twenty English prime ministers of the same 
period, there are but six of the latter, and at least eight of the 
former whom history calls personally insignificant, while only 
Washington, Jefferson, Lincoln, and Grant can claim to belong 
to a front rank represented in the English list by seven or possibly 
eight names. 2 It would seem that the natural selection of the 


1 Jackson himself was something of both politician and soldier, a strong 
character, but a narrow and uncultivated intellect. 

2 The American average would be further lowered were we to reckon in the 
four Vice-Presidents who, down to 1900, succeeded on the death of the Presi- 




84 


THE NATIONAL GOVERNMENT 


PART I 


English parliamentary system, even as modified by the aris¬ 
tocratic habits of that country, had more tendency to bring the 
highest gifts to the highest place than the more artificial selection 
of America. 


dent. Yet the English system does not always secure men personally eminent. 
Addington, Perceval, and Lord Goderich are no better than Tyler or Fillmore, 
which is saying little enough. 

Of Presidents since 1900 it is not yet time to speak. 



CHAPTER IX 


THE CABINET 

There is in the government of the United States no such 
thing as a Cabinet in the English sense of the term. But I 
use the term, not only because it is current in America to de¬ 
scribe the chief ministers of the President, but also because it 
calls attention to the remarkable difference which exists between 
the great officers of State in America and the similar officers in 
the free countries of Europe. 

Almost the only reference in the Constitution to the minis¬ 
ters of the President is that contained in the power given him 
to “ require the opinion in writing of the principal officer in 
each of the executive departments upon any subject relating to 
the duties of their respective offices.” All these departments 
have been created by Acts of Congress. Washington began 
in 1789 with four only, at the head of whom were the following 
four officials : — 

Secretary of State. 

Secretary of the Treasury. 

Secretary of War. 

Attorney-General. 

In 1798 there was added a Secretary of the Navy, in 1829 a 
Postmaster-General, 1 in 1849 a Secretary of the Interior, in 
1888 a Secretary of Agriculture, in 1903 a Secretary of Com¬ 
merce and Labour, and in 1913 a Secretary of Labour. 

These ten now make up what is called the Cabinet. 2 Each 
receives a salary of $12,000 (£2400). All are appointed by 

1 The postmaster-general had been previously deemed a subordinate in the 
Treasury department, although the office was organized by Act of Congress in 
1794; he has been held to belong to the cabinet since Jackson in 1829 invited 
him to cabinet meetings. 

2 There is also an Interstate Commerce Commission, with large powers over 
railways, created in February 1887 by Act of Congress; and a Civil Service 
Commission created in 1883. The Fisheries Commission, the Census, and the 
Coast Survey belong to the Department of Commerce, Education to the Depart¬ 
ment of the Interior, Immigration to the Department of Labor. 

85 


86 


THE NATIONAL GOVERNMENT 


PART I 


the President, subject to the consent of the Senate (which is 
practically never refused), and may be removed by the Presi¬ 
dent alone. Nothing marks them off from any other officials 
who might be placed in charge of a department, except that 
they are summoned by the President to his private council. 

None of them can vote in Congress, Art. xi. § 6 of the Con¬ 
stitution providing that “ no person holding any office under 
the United States shall be a member of either House during 
his continuance in office.” 

This restriction was intended to prevent the President not 
merely from winning over individual members of Congress by 
the allurements of office, but also from making his ministers 
agents in corrupting or unduly influencing the representatives 
of the people, as George III. and his ministers corrupted the 
English Parliament. There is a passage in the Federalist 
(Letter xl.) which speaks of “ Great Britain, where so great a 
proportion of the members are elected by so small a propor¬ 
tion of the people, where the electors are so corrupted by the 
representatives, and the representatives so corrupted by the 
Crown.” The Fathers of the Constitution were so resolved to 
avert this latter form of corruption that they included in their 
instrument the provision just mentioned. Its wisdom has 
sometimes been questioned. But it deserves to be noticed that 
the Constitution contains nothing to prevent ministers from 
being present in either House of Congress and addressing it, 1 as 
the ministers of the King of Italy or of the French President 
may do in either chamber of Italy or France. 2 It is absolutely 
silent on the subject of communications between officials (other 
than the President) and the representatives of the people. 

The President has the amplest range of choice for his min¬ 
isters. He usually forms an entirely new cabinet when he 


1 In February 1881 a committee of eight senators unanimously reported in 
favour of a plan to give seats (of course without the right to vote) in both 
Houses of Congress to cabinet ministers, they to attend on alternate days in 
the Senate and in the House. The Committee recommended that the necessary 
modification in the rules should be made, adding that they had no doubt of 
the constitutionality of the proposal. Nothing has so far been done to carry 
out this report. Congress does not like the idea, yet the advantages to Con¬ 
gress itself are obvious, for it would secure opportunities of questioning 
ministers. In Switzerland the Federal Councillors habitually appear and speak 
in both Houses, although members of neither. 

2 The Italian ministers usually are members of one or other House. Of 
course they vote only in the House to which they have been chosen. 



CHAP. IX 


THE CABINET 


87 


enters office, even if he belongs to the same party as his pred¬ 
ecessor. He can and sometimes does take men who not only 
have never sat in Congress, but have not figured in politics 
at all, who may never have sat in a State legislature nor held 
the humblest office. 1 Generally, of course, the persons chosen 
have already made for themselves a position of at least local 
importance. Often they are those to whom the new Presi¬ 
dent owes his election, or to whose influence with the party 
he looks for support in his policy. Sometimes they have 
been his most prominent competitors for the party nomina¬ 
tions. Thus Mr. Lincoln in 1860 appointed Mr. Seward and 
Mr. Chase to be his secretary of state and secretary of the 
treasury respectively, they being the two men who had come 
next after him in the selection by the Republican party of a 
presidential candidate. 

The most dignified place in the cabinet is that of the Secre¬ 
tary of State. It is the great prize often bestowed on the man 
to whom the President is chiefly indebted for his election, or 
at any rate on one of the leaders of the party. In early days, 
it was regarded as the stepping-stone to the presidency. Jef¬ 
ferson, Madison, Monroe, J. Q. Adams, and Van Buren, had all 
served as secretaries to preceding presidents. The conduct of 
foreign affairs is the chief duty of the State department: its 
head has therefore a larger stage to play on than any other minis¬ 
ter, and more chances of fame. His personal importance is all 
the greater because the President is usually so much absorbed 
by questions of patronage as to be forced to leave the secretary 
to his own devices. Hence the foreign policy of the adminis¬ 
tration is practically that of the secretary, except so far as the 
latter is controlled by the Senate. The State department has 
also the charge of the great seal of the United States, keeps 
the archives, publishes the statutes, and of course instructs 
and controls the diplomatic and consular services. It has some¬ 
times been said of a President that he is ruled, or as the Ameri¬ 
cans express it, “run,” by his secretary; but this happens 
only when the secretary is the stronger man, and in the same 
way it has been said of Presidents before now that they were, 
like sultans, ruled by their wives, or by their boon companions. 

The Secretary of the Treasury is minister of finance. His 

1 Only two members of Mr. Harrison’s cabinet, formed in 1889, and only two 
of Mr. Taft’s cabinet, formed in 1909, had ever sat in Congress. 



88 


THE NATIONAL GOVERNMENT 


PART r 


function was of the utmost importance at the beginning of the 
government, when a national system of finance had to be built 
up and the Federal Government rescued from its grave embar¬ 
rassments. Hamilton, who then held the office, effected both; 
and the work of Gallatin, who served under Jefferson, was 
scarcely less important. During the War of Secession, it be¬ 
came again powerful, owing to the enormous loans contracted 
and the quantities of paper money issued, and it remains so 
now, because it has the management (so far as Congress per¬ 
mits) of the currency and the national debt. The secretary 
has, however, by no means the same range of action as a finance 
minister in European countries, for as he is excluded from 
Congress, although he regularly reports to it, he has nothing 
directly to do with the imposition of taxes, and very little with 
the appropriation of revenue to the various burdens of the 
State. 1 

The Secretary of the Interior is far from being the omni¬ 
present power which a minister of the interior is in France or 
Italy, or even a Home Secretary in England, since nearly all the 
functions which these officials discharge belong in America to 
the State governments or to the organs of local government. 
He is chiefly occupied in the management of the public lands, 
still of immense value, despite the lavish grants made to rail¬ 
way companies, and with the conduct of Indian affairs, a trouble¬ 
some and unsatisfactory department, which was long a reproach 
to the United States, and may from time to time again become so, 
till the Indians themselves disappear or have been civilized. 
Patents and pensions, the latter a source of great expense and 
abuse, also belong to his province, as do the meteorological office, 
the geological survey, and the reclamation office. 

The duties of the Secretaries of War, of the Navy, 2 of Agri¬ 
culture, of Commerce, of Labour, and of the Postmaster-Gen¬ 
eral may be gathered from their names. But the Attorney-General 
is sufficiently different from his English prototype to need a word 
of explanation. He is not only public prosecutor and standing 
counsel for the United States, but also to some extent what is 
called on the European continent a minister of justice. He has 

1 See post, Chapter XVII. (Congressional Finance), where it will be shown 
that the chairmen of the committees of Ways and Means and of Appropria¬ 
tions are practically additional ministers of finance. 

2 For a statement of the forces of the United States and their cost, see note 
at end of this chapter. 



CHAP. IX 


THE CABINET 


89 


a general oversight — it can hardly be described as a control — 
of the Federal judicial departments, and especially of the prose¬ 
cuting officers called district attorneys, and executive court offi¬ 
cers, called United States marshals. He is the legal adviser 
of the President in those delicate questions, necessarily fre¬ 
quent under the Constitution of the United States, which 
arise as to the limits of the executive power and the relations 
of Federal to State authority, and generally in all legal mat¬ 
ters. His opinions are frequently published officially, as a 
justification of the President’s conduct, and an indication of 
the view which the executive takes of its legal position and 
duties in a pending matter. 1 Some of them have indeed a 
quasi-judicial authority, for when a department requests his 
opinion on a question of law, as for instance, regarding the inter¬ 
pretation of a statute, that opinion is deemed authoritative for 
the officials, although, of course, a judgment of a Federal Court 
would upset it. His power to institute or abstain from institut¬ 
ing prosecutions under Federal Acts is also a function of much 
moment. The attorney-general is always a lawyer of eminence, 
though not necessarily in the front rank of the profession, for 
political considerations have much to do with determining the 
President’s choice. 2 r 

The creation of the Departments of Commerce and of Labour 
was an evidence of that extension of the functions of government 
into new fields which is no less remarkable in the United States 
than it is in Europe. Among the duties of the former are the 
supervision of corporations (other than railroads) doing inter¬ 
state business, lighthouses, the coast and geodetic survey, mer¬ 
chant shipping, the census, and trade statistics. The latter 
has within its sphere the administration of the immigration laws. 

It will be observed that from this list of ministerial offices 
several are wanting which exist in Europe. Thus there is no 
minister of education, because that department of business 
belongs to the several States; 3 no minister of public worship, 


1 Another variance from the practice of England, where the opinions of the 
law officers of the Crown are always treated as confidential. 

2 The Solicitor-General is a sort of assistant to the attorney, and not (as in 
England) a colleague. 

3 There was established by Acts of 1867 and 1869 a Bureau of Education, 
attached to the department of the Interior, but its function is only to collect 
and diffuse information on educational subjects. This it does with assiduity 
and success. 



THE NATIONAL GOVERNMENT 


PART I 


50 


because the United States Government has nothing to do with 
any particular form of religion ; no minister of public works, be¬ 
cause grants made for this purpose come direct from Congress 
without the intervention of the executive, and are applied as 
Congress directs. 1 Neither was there, till the Philippine Isles 
and Puerto Rico were acquired, any Colonial Office. Since that 
date (1899) a Bureau of Insular Affairs has been established, 
and placed under the War department, to take charge of these 
dependencies. Much of the work which in Europe would 
devolve on members of the administration falls in America to 
committees of Congress, especially to committees of the House 
of Representatives. This happens particularly as regards 
taxation, public works, and the management of the Territories, 
for each of which matters there exists a committee in both 
Houses. Some controversy has arisen in Washington regarding 
the respective precedence of Cabinet Ministers and of Senators. 
The point is naturally of more importance as regards the wives 
of the claimants than as regards the claimants themselves. 

The respective positions of the President and his ministers 
are, as has been already explained, the reverse of those which 
exist in the constitutional monarchies of Europe. There the 
sovereign is irresponsible and the minister responsible for the 
acts which he does in the sovereign’s name. In America 
the President is responsible because the minister is nothing 
more than his servant, bound to obey him, and independent 
of Congress. The minister’s acts are therefore legally the 
acts of the President. Nevertheless the minister is also re¬ 
sponsible and liable to impeachment for offences committed 
in the discharge of his duties. The question whether he is, 
as in England, impeachable for giving bad advice to the head 
of the State has never arisen, but upon the general theory of 
the Constitution it would rather seem that he is not, unless of 
course his bad counsel should amount to a conspiracy with the 
President to commit an impeachable offence. In France the 
responsibility of the President’s ministers does not in theory 

1 Money voted for river and harbour improvements is voted in sums appro¬ 
priated to each particular piece of work. The work is supervised by officers 
of the Engineer corps of the United States army, under the general direction 
of the War department. * Public buildings are erected under the direction of 
an official called the supervising architect, who is attached to the Treasury 
department. The Weather bureau belongs to the Department of Agriculture, 
as do the bureau of chemistry and the administration of the Pure Food laws. 



CHAP. IX 


THE CABINET 


91 


exclude the responsibility of the President himself, although 
practically it makes a great difference, because he, like the Eng¬ 
lish Crown, acts through ministers supported by a majority 
in the Chamber. 

So much for the ministers taken separately. It remains to 
consider how an American Administration works as a whole, 
this being in Europe the most peculiar and significant feature 
of the parliamentary or so-called “cabinet” system. 

In America the Administration does not work as a whole. 

It is not a whole. It is a group of persons, each individually v'" 
dependent on and answerable to the President, but with np*< 
joint policy, no collective responsibility. 1 

When the Constitution was established, and George Wash¬ 
ington chosen first President under it, it was intended that the 
President should be outside and above party, and the method 
of choosing him by electors was contrived with this very view. 
Washington belonged to no party, nor indeed, though diverg¬ 
ing tendencies were already manifest, had parties yet begun to 
exist. There was therefore no reason why he should not 
select his ministers from all sections of opinion. As he was 
responsible to the nation and not to a majority in Congress, he 
was not bound to choose persons who agreed with the majority 
in Congress. As he, and not the ministry, was responsible for 
executive acts done, he had to consider, not the opinions or 
affiliations of his servants, but their capacity and integrity only. 
Washington chose as secretary of state Thomas Jefferson, 
already famous as the chief draftsman of the Declaration of 
Independence, and as attorney-general another Virginian, 
Edmund Randolph, both men of extreme democratic leanings, 
disposed to restrict the action of the Federal Government 
within narrow limits. For secretary of the treasury he selected 
Alexander Hamilton of New York, and for secretary of war 
Henry Knox of Massachusetts. Hamilton was by far the 
ablest man among those who soon came to form the Federalist 
party, the party which called for a strong executive, and desired 

1 In America people usually speak of the President and his ministers as the 
“administration,” not as the “government,” apparently because he and they 
are not deemed to govern in the European sense. The latter expression is not 
very old in England. Fifty years ago people usually said “the Ministry 
when they now say “the Government.” In France and Germany Ministry is 
the term used, while Gouvernement and Regierung denote the executive qua 
executive. 



92 


THE NATIONAL GOVERNMENT 


PART I 


to subordinate the States to the central authority. He soon 
became recognized as its leader. Knox was of the same way 
of thinking. Dissensions presently arose between Jefferson 
and Hamilton, ending in open hostility, but Washington re¬ 
tained them both as ministers till Jefferson retired in 1794 
and Hamilton in 1795. The second President, John Adams, 
kept on the ministers of his predecessors, being in accord with 
their opinions, for they and he belonged to the now full-grown 
Federalist party. But before he quitted office he had quar¬ 
relled with most of them, having taken important steps with¬ 
out their knowledge and against their wishes. Jefferson, the 
third President, was a thorough-going party leader, who natu¬ 
rally chose his ministers from his own political adherents. As 
all subsequent Presidents have been seated by one or other 
party, all have felt bound to appoint a party cabinet though 
not necessarily one of strong party men. Their party expects 
it; and they prefer to be advised by people of their own way 
of thinking. 

So far, an American cabinet resembles a British one. It is 
composed of members of one party, if not of prominent party 
leaders. But now mark the differences. The parliamentary 
system of England and of those countries which like Belgium, 
Italy, and the self-governing British colonies, have more or less 
modelled themselves upon England, rests on four principles. 

The head of the executive is irresponsible. Responsibility 
attaches to the cabinet, i.e. to the body of ministers who ad¬ 
vise him, so that if he errs, it is through their fault; they suffer 
and he escapes. The ministers cannot allege, as a defence 
for any act of theirs, the command of the Crown. If the 
Crown gives them an order of which they disapprove, they ought 
to resign. 

The ministers sit in the legislature, practically forming in 
England, as has been observed by Bagehot, the most acute 
of English constitutional writers, a committee of the legislature, 
chosen by the majority for the time being. 

The ministers are accountable to the legislature, and must 
resign office 1 as soon as they lose its confidence. 


1 In England and some other countries ( e.g. the self-governing British colo¬ 
nies) they have the alternative of dissolving Parliament, subject to a somewhat 
undefined, but not wholly extinct, right of the Crown or the Governor to refuse 
a dissolution in certain cases. 



CHAP. IX 


THE CABINET 


93 


The ministers are jointly as well as severally liable for their 
acts : i.e. the blame of an act done by any of them falls 
on the whole cabinet, unless one of them chooses to take it 
entirely on himself and retire from office. Their responsibility 
is collective. 

None of these principles holds true in America. The Presi¬ 
dent is personally responsible for his acts, not indeed to Con¬ 
gress, but to the people, by whom he is chosen. No means 
exist of enforcing this responsibility, except by impeachment, 
but as his power lasts for four years only, and is much re¬ 
stricted, this is no serious evil. He cannot avoid responsibility 
by alleging the advice of his ministers, for he need not follow 
it, and they are bound to obey him or retire. The ministers 
do not sit in Congress. They are not accountable to it, but to 
the President, their master. It may request their attendance 
before a committee, as it may require the attendance of any 
other witness, but they have no opportunity of expounding and 
justifying to Congress as a whole their own, or rather their 
master's, policy. Hence an adverse vote of Congress does not 
affect their or his position. If they propose to take a step 
which requires money, and Congress refuses the requisite ap¬ 
propriation, the step cannot be taken. But a dozen votes of 
censure will neither compel them to resign nor oblige the Presi¬ 
dent to pause in any line of conduct which is within his con¬ 
stitutional rights. This, however strange it may seem to a 
European, is a necessary consequence of the fact that the 
President, and by consequence his cabinet, do not derive their 
authority from Congress. Suppose (as befell in 1878-9) a 
Republican President, with a Democratic majority in both 
Houses of Congress. The President, unless of course he is con¬ 
vinced that the nation has changed its mind since it elected 
him, is morally bound to follow out the policy which he pro¬ 
fessed as a candidate, and which the majority of the nation 
must be held in electing him to have approved. That policy 
is, however, opposed to the views of the present majority of 
Congress. They are right to check him as far as they can. He 
is right to follow out his own views and principles in spite 
of them so far as the Constitution and the funds at his disposal 
permit. A deadlock may follow. But deadlocks may happen 
under any system, except that of an omnipotent sovereign, be 
he a man or an assembly, the risk of deadlocks being indeed the 




94 


THE NATIONAL GOVERNMENT 


PART 1 


price which a nation pays for the safeguard of constitutional 
checks. 

In this state of things one cannot properly talk of the cabinet 
apart from the President. An American administration re¬ 
sembles not so much the cabinets of England and France as the 
group of ministers who surround the Czar or the Sultan, or who 
executed the bidding of a Roman emperor like Constantine or 
Justinian. Such ministers are severally responsible to their 
master, and are severally called in to counsel him, but they 
have not necessarily any relations with one another, nor any 
duty of collective action. So while the President commits 
each department to the minister whom the law provides, and 
may if he chooses leave it altogether to that minister, the ex¬ 
ecutive acts done are his own acts, by which the country will 
judge him ; and still more is his policy as a whole his own policy, 
and not the policy of his ministers taken together. 1 The min¬ 
isters meet in council (often twice every week while Congress 
is sitting), but may not have much to settle when they meet, 
since they have no parliamentary tactics to contrive, few bills 
to prepare, few problems of foreign policy to discuss. They 
are not a government, as Europeans understand the term ; they 
are a group of heads of departments, whom the chief, though he 
usually consults them separately, often finds it useful to bring 
together in one room for a talk about politics, including appoint¬ 
ments, or to settle some administrative question which lies on 
the borderland between the provinces of two ministers. A 
significant illustration of the contrast between the English and 
American systems may be found in the fact that whereas an 
English monarch has never (since Queen Anne’s time) sat in his 
own cabinet, because if he did he would be deemed accountable 
for its decisions, an American President always does, because 
he is accountable, and really needs advice to help him, not to 
shield him. 2 

The so-called cabinet is unknown to the statutes as well as 
to the Constitution of the United States. So is the English 
cabinet unknown to the law of England. But then the English 
cabinet is a part, is, in fact, a committee, though no doubt 

1 Lincoln decided on his emancipation proclamation without consulting his 
cabinet, although he read the draft of it to them for criticism. 

2 Another illustration of the contrast may be found in the fact that when 
the head of a department is absent from Washington the under secretary of 
the department is often asked to replace him in the cabinet council. 



CHAP. IX 


THE CABINET 


95 


an informal committee, of a body as old as Parliament itself, the 
Privy Council, or Curia Regis. Of the ancient institutions of 
England which reappear in the Constitution of the United 
States, the Privy Council is not one. 1 It may have seemed to 
the Convention of 1787 to be already obsolete. Even in Eng¬ 
land it was then already a belated survival from an earlier order 
of things, and now it lives on only in its committees, three of 
which, the Board of Trade, the Board of Education, and the 
Agricultural department, serve as branches of the administra¬ 
tion, one, the Judicial Committee, is a law court, and one, the 
Cabinet, is the virtual executive of the nation. 2 The framers 
of the American Constitution saw its unsuitability to their 
conditions. It was nominated, while with them a council must 
have been elective. Its only effect would have been to control 
the President, but for domestic administration control appeared 
scarcely needed, because the President has only to execute the 
laws, while in foreign affairs and appointments the Senate con¬ 
trols him already. A third body, over and above the two Houses 
of Congress, was in fact superfluous. The Senate may appear 
to bear a resemblance to the English Privy Council of the 
seventeenth century, because it advises the executive in certain 
matters; but there is all the difference in the world between 
being advised by those whom you have yourself chosen and those 
whom election by others forces upon you. So it happens that 
the relations of the Senate and the President are seldom cordial, 
much less confidential, even when he and the majority of the 
Senate belong to the same party, because the Senate and the 
President are rival powers jealous of one another. 

1 A privy council, however, appears in the original Constitution of Delaware ; 
and there were in many States councils for advising the Governor. When 
James Wilson was proposing that the executive should consist of a single person, 
he was asked whether this person was to have a council, and answered that he 
desired “to have no council which oftener serves to cover than to prevent mal¬ 
practices.”— Elliot’s Debates, v. 151. So Randolph argued that councillors 
would impair the President’s responsibility. (See post, Chapter XLI.) 

2 The first three of these are formal, the functions being discharged by a 
single minister, while the Cabinet, though composed of members of the Privy 
Council, is not formally constituted as a committee. 



96 


THE NATIONAL GOVERNMENT 


PART 


Note on Army and Navy 

The army and navy of the United States have greatly increased in recent 
years. 

Number of officers and men in the army was in 1889 . 

In 1912 it was .Officers . 

Men . . 

The cost of the army was in 1889 . 

In 1913 the army appropriations reached. 

In the navy the number of officers and men was: — 


In 1889 . 9,831 

In 1913.57,178 

In 1889 there were six fighting ships in the navy. 

In 1912 there were 208 fighting ships classified as follows: — 

Battleships .29 

(Besides nine old battleships) 

Cruisers, First class.15 

Second class.3 

Third class.14 

Gunboats.21 

Monitors.10 

Destroyers.49 

Torpedo boats.32 

Submarines.35 


26,235 

4,947 

87,279 

$42,381,671 

$103,747,441 


In 1889 the cost of the navy was $25,767,348.19; in 1918, it was $123,220,707 

















CHAPTER X 


THE SENATE 

The National Legislature of the United States, called Con¬ 
gress, consists of two bodies, sufficiently dissimilar in compo¬ 
sition, powers, and character to require a separate description. 

The Senate consists of two persons from each State, who must 
be inhabitants of that State, and at least thirty years of age. 
They were until 1913 elected by the legislature of their State for 
six years, but are now under the seventeenth amendment to the 
Constitution elected by the registered voters of the State. 
They are re-eligible. One-third retire every two years, so that 
the whole body is renewed in a period of six years, the old mem¬ 
bers being thus at any given moment twice as numerous as the 
new members elected within the last two years. As there are 
now forty-eight States, the number of senators, originally twenty- 
six, is now ninety-six. This great and unforeseen augmentation 
must be borne in mind when considering the purposes for which 
the Senate was created, for some of which a small body is fitter 
than a large one. As there now remain no Territories which 
can be formed into States, 1 the number of senators will not 
(unless, indeed, existing States are divided) rise beyond ninety- 
six. This is of course much below the present nominal strength 
of the English House of Lords 2 (above 600), and below that of 
the French Senate (300), and the Prussian Herrenhaus. No 
senator can hold any office under the United States. The Vice- 
President of the Union is ex officio president of the Senate, but 
has no vote, except a casting vote when the numbers are equally 
divided. Failing him (if, for instance, he dies, or falls sick, 

1 I reckon in neither the Hawaiian Islands nor Alaska, because the former 
is hardly likely, within the near future, nor the latter for a long time to come, 
to contain a civilized white population such as would entitle either of them to 
be formed into States. See Chap. XCVI., Vol. II. 

2 At the accession of George III. the House of Lords numbered only 174 
members. 


H 


97 


98 


THE NATIONAL GOVERNMENT 


PART 1 


or succeeds to the presidency), the Senate chooses one of its 
number to be president pro tempore. His authority in questions 
of order is very limited, the decision of such questions being 
held to belong to the Senate itself. 1 

The functions of the Senate fall into three classes — legis¬ 
lative, executive, and judicial. 2 Its legislative function is to 
pass, along with the House of Representatives, bills which 
become Acts of Congress on the assent of the President, or 
even without his consent if passed a second time by a two- 
thirds majority of each House, after he has returned them 
for reconsideration. Its executive functions are : — (a) To ap¬ 
prove or disapprove the President's nominations of Federal 
officers, including judges, ministers of state, and ambassadors. 
(6) To approve, by a majority of two-thirds of those present, 
of treaties made by the President— i.e. if less than two-thirds 
approve, the treaty falls to the ground. Its judicial function 
is to sit as a court for the trial of impeachments preferred by 
the House of Representatives. 

The most conspicuous, and what was at one time deemed the 
most important feature of the Senate, is that it represents the 
several States of the Union as separate commonwealths, and is 
thus an essential part of the Federal scheme. Every State, be 
it as great as New York or as small as Delaware, sends two 
senators, no more and no less. 3 This arrangement was long 
resisted by the delegates of the larger States in the Conven¬ 
tion of 1787, and ultimately adopted because nothing less 


1 The powers of the Lord Chancellor as Speaker of the English House of 
Lords are much narrower than those of the Speaker in the House of Commons. 
It is worth notice that as the Vice-President is not chosen by the Senate, but 
by the people, and is not strictly speaking a member of the Senate, so the Lord 
Chancellor is not chosen to preside by the House of Lords, but by the sovereign, 
and is not necessarily a peer. This, however, is merely a coincidence, and not 
the result of a wish to imitate England. 

2 To avoid prolixity. I do not set forth all the details of the constitutional 
powers and duties of the Houses of Congress: these will be found in the text 
of the Constitution printed in the Appendix. 

3 New York is twice as large as Scotland, and more populous than Scotland 
and Wales taken together. Delaware is a little smaller than Norfolk, with 
about the population of Dorsetshire. It is therefore as if Dorsetshire had 
in one House of a British legislature as much weight as Scotland and Wales 
put together, a state of things not very conformable to democratic theory. 
Nevada has now a population estimated at a little over 80,000, but is as powerful 
in the Senate as New York. This State, which largely consists of burnt-out 
mining camps, has been really a sort of rotten borough for, and is controlled by, 
the great “silver men." 



CHAP. X 


THE SENATE 


99 


would reassure the smaller States, who feared to be overborne 
by the larger. It is now the provision of the Constitution 
most difficult to change, for “no State can be deprived of its 
equal suffrage in the Senate without its consent,” a consent 
most unlikely to be given. There has never, in point of fact, 
been any division of interests or consequent contests between 
the great States and the small ones . 1 But the provision for 
the equal representation of all States had the important result 
of making the slave-holding party, during the thirty years which 
preceded the Civil War, eager to extend the area of slavery 
in order that by creating new Slave States they might maintain 
at least an equality in the Senate, and thereby prevent any 
legislation hostile to slavery. 

The plan of giving representatives to the States as common¬ 
wealths has had several useful results. It has provided a 
basis for the Senate unlike that on which the other House of 
Congress is chosen. Every nation which has formed a legisla¬ 
ture with two houses has experienced the difficulty of devising 
methods of choice sufficiently different to give a distinct char¬ 
acter to each house. Italy has a Senate composed of persons 
nominated by the Crown. The Prussian House of Lords is 
partly nominated, partly hereditary, partly elective. The 
Spanish senators are partly hereditary, partly official, partly 
elective. In the Germanic Empire, the Federal Council con¬ 
sists of delegates of the several kingdoms and principalities. 
France appoints her senators by indirect election. In England 
the non-spiritual members of the House of Lords now sit by 
hereditary right; and those who propose to reconstruct that 
ancient body are at their wits’ end to discover some plan by 
which it may be strengthened, and made practically useful, 
without such a direct election as that by which members are 
chosen to the House of Commons . 2 The American plan, which 
is older than any of those in use on the European continent, 
is also better, because it is not only simple, but natural, i.e. 
grounded on and consonant with the political conditions of 


1 Hamilton perceived that this would be so ; see his remarks in the Consti¬ 
tutional Convention of New York in 1788. — Elliot’s Debates , vol. ii. p. 213. 

2 Under a statute of 1876, two persons (now four persons) may be appointed 
by the Crown to sit as Lords of Appeal, with the dignity of baron for life. The 
Scotch and Irish peers enjoy hereditary peerages, but only a certain number are 
elected by their fellow peers to sit in the House pf Lords, the latter for life, the 
former for each parliament. 




100 


THE NATIONAL GOVERNMENT 


PART I 


America. It produces a body which is both strong in itself and 
different in its collective character from the more popular House. 

Till 1913, it also constituted, as Hamilton anticipated, a link 
between the State Governments and the National Government. 
It is a part of the latter, but its members derived their title to §it 
in it from their choice by State legislatures. In one respect this 
connection was no unmixed benefit, for it helped to make the 
national parties powerful, and their strife intense, in these 
last-named bodies. Every vote in the Senate was so important 
to the great parties that they were forced to struggle for ascen¬ 
dency in each of the State legislatures by whom the senators 
were elected. The method of choice in these bodies was formerly 
left to b$ fixed by the laws of each State, but as this gave rise 
to much uncertainty and intrigue, a Federal statute was passed 
in 1866 providing that each House of a State legislature should 
first vote separately for the election of a Federal senator, and that 
if the choice of both Houses did not fall on the same person, 
both Houses in joint meeting should proceed to a joint vote, a 
majority of all the members elected to both Houses being 
present and voting. Even under this arrangement, a senatorial 
election often led to long and bitter struggles; the minority 
endeavouring to prevent a choice, and so keep the seat vacant. 
Moreover such struggles gave occasion for efforts to influence 
the doubtful members of a legislature out of which charges of 
improper methods often arose. 

The method of choosing the Senate by indirect election used 
to excite the admiration of foreign critics, who found in it 
a sole and sufficient cause of the excellence of the Senate as a 
legislative and executive authority. I shall presently inquire 
whether the critics were right. Be that as it may, the method 
was before the close of last century becoming increasingly un¬ 
popular. Choice by a legislature had come to mean choice by a 
party majority in a legislative caucus, and the determination 
of that caucus had often been prearranged by a small group of 
party managers; or if that did not happen secretly, it had been 
settled in a party convention which directed the members of the 
party in the legislature how to cast their votes. There was 
anyhow little room left for free selection by the legislature. 
The people, or rather those wire-pullers who manage the people 
and act in their name, had usually settled the matter beforehand. 
So hard is it to make any scheme of indirect election work ac- 



CHAP. X 


THE SENATE 


101 


cording to its original design; so'hard is it to keep even a written 
and rigid constitution from bending and warping under the 
actual forces of politics. 

Cases moreover occurred in which a rich man practically 
bought his election. One such led, in 1912, to the expulsion of 
a newly elected senator for bribery. 

While public sentiment was growing more and more hostile 
to the method of election by state legislatures, and resolutions 
calling for a change were being passed by these legislatures 
themselves at the bidding of that sentiment, a plan was dis¬ 
covered by which what amounted to a direct popular election 
was secured in an indirect way. In 1904 Oregon provided, by a 
law passed by the people under the Initiative method of legis¬ 
lation contained in the Constitution of that State, that the 
political parties might in the party primaries nominate persons 
for election as United States senators, and that the people might 
at the ensuing election of the State legislature select by their 
votes one of these nominees as their choice for senator. Along 
with this it was also enacted that a candidate for the State 
legislature might on his nomination either (1) declare that he 
would, if elected, vote for that person as United States Senator 
who had received the largest popular vote and thus become 
“the people’s choice” or (2) declare that he would consider the 
popular vote as merely “a recommendation.” Or he might 
make no declaration at all. In 1908 a majority of the members 
elected to the legislature, having made the former declaration, 
felt bound to carry it out, and the person who had received the 
highest popular vote was accordingly elected by that majority, 
although he was a Democrat and they were Republicans. 
Thus the people got their way and the Federal Constitution was 
not formally transgressed. In 1909 Nebraska adopted a similar 
law. 

The flank of the Constitution having been thus, so to speak, 
turned, the battle was virtually over, and the Senate, hitherto 
hostile to popular election, presently gave way. An amend¬ 
ment transferring the election to the peoples of the States was 
passed in Congress and accepted by the legislatures of all the 
States in 1913. 1 

How the new plan will work remains to be seen. It has some 

1 As is provided in the Constitution of the Australian Commonwealth, where 
each State elects its Senators by direct popular vote. 




102 


THE NATIONAL GOVERNMENT 


PART I 


obvious merits, and it need not tend to make the Senate a less 
independent body, for it has in recent years been quite as 
prone to “play to the gallery” as the House or any other directly 
elected chamber. But it may add immensely to the expense 
falling on candidates, as well as, to the labour thrown on them 
in stumping the State; and if it causes senators to be less 
frequently re-elected at the end of their term, it will reduce the 
element of long political experience heretofore present in it 
more largely than in the House. 

As to the element of expense involved in direct elections, it 
may be said that the sum which can be spent by candidates for 
the Senate is fixed by the law of 1911 at $10,000 and that this 
amount cannot be exceeded under the new arrangement. The 
obvious reply to this is that under the old system many Sena¬ 
tors paid nothing at all for their campaign expenses and that 
the law just referred to does not limit the amount which may 
be spent by the friends of a candidate in his campaign. It is 
money from outside sources that is to be feared more than 
heavy expenditures by the candidates themselves. On the 
other hand, it is notorious that large sums of money were often 
paid by candidates seeking their election from state legislatures; 
and many champions of the new order say that it is better for 
the money to be spent in a state-wide campaign of publicity 
than in the secret confines of the legislative caucus. 

Members of the Senate vote as individuals, that is to say, the 
vote a senator gives is his own and not that of his State. It 
was otherwise in the Congress of the old Confederation before 
1789; it is otherwise in the present Federal Council of the 
German Empire, in which each State votes as a whole, though 
the number of her votes is roughly proportioned to her popula¬ 
tion. Accordingly, in the American Senate, the two senators 
from a State may belong to opposite parties; and this often 
happens in the case of senators from States in which the two 
great parties are pretty equally balanced, and the majority oscil¬ 
lates between them. 1 As the State legislatures sit for short 
terms (the larger of the two houses usually for two years only), a 
senator has during the greater part of his six years’ term to look 
for re-election not to the present but to a future State legis- 

1 It was arranged from the beginning of the Federal Government that the 
two senatorships from the same State should never be vacant at the same time 
except in case of a death or “deadlock.” 




CHAP. X 


THE SENATE 


103 


lature, 1 and this circumstance tends to give him somewhat more 
independence. 

The length of the senatorial term was one of the provisions 
of the Constitution which were most warmly attacked and 
defended in 1788. A six years’ tenure, it was urged, would 
turn the senators into dangerous aristocrats, forgetful of the 
legislature which had appointed them ; and some went so far as 
to demand that the legislature of a State should have the right 
to recall its senators. 2 Experience has shown that the term is 
by no means too long; and its length is one among the causes 
which have made it easier for senators than for members of the 
House to procure re-election, a result which, though it offends 
the doctrinaires of democracy, worked well for the country. 
Senators from the smaller States were more frequently re-elected 
than those from the larger, because in the small States the com¬ 
petition of ambitious men is less keen, politics less changeful, 
the people perhaps more steadily attached to a man whom they 
have once honoured with their confidence. The senator from 
such a State generally found it more easy to maintain his 
influence over his own legislature; not to add that if the State 
should be amenable to the power of wealth, his wealth will 
tell far more than it could in a large State. Yet no small 
State was ever more controlled by one man than the great State 
of Pennsylvania has been by its “bosses” ever since the Civil 
War years. The average age of the Senate is less than might be 
expected. Three-fourths of its members are under sixty. The 
importance of the State he represents makes no great difference 
to the influence which a senator enjoys; this depends on his 
talents, experience, and character; and as the small State sen¬ 
ators have often the advantage of long service and a safe seat, 
they are often among the most influential. 

The Senate resembles the Upper Houses of Europe, and 
differs from those of most British colonies, and of most of the 
States of the Union, in being a permanent chamber. It is an un- 

1 If a vacancy occurs in a senatorship at a time when the State legislature 
is not sitting, the executive of the State is empowered to fill it up until the next 
meeting of the State legislature. This power is specially important if the 
vacancy occurs at a time when parties are equally divided in the Senate. 

2 This was recommended by a Pennsylvanian Convention, which met after 
the adoption of the Constitution to suggest amendments. See Elliot’s Debates, 
ii. p. 545. A State legislature sometimes passes resolutions instructing its 
senators to vote in a particular way, but the senators are of course in no way 
bound to regard such instructions. 



104 


THE NATIONAL GOVERNMENT 


PART I 


dying body, with an existence continuous since its first creation; 
and though it changes, it does not change all at once, as do 
assemblies created by a single popular election, but undergoes 
an unceasing process of gradual renewal, like a lake into which 
streams bring fresh water to replace that which the issuing 
river carries out. As Harrington said of the Venetian Senate, 
“being always changing, it is forever the same.” This pro¬ 
vision was designed to give the Senate that permanency of 
composition which might qualify it to conduct or control the 
foreign policy of the nation. An incidental and more valuable 
result was the creation of a set of traditions and a corporate 
spirit which tended to form habits of dignity and self-respect. 
The new senators, being only one third, or less, are readily 
assimilated; and though the balance of power shifts from one 
party to another according to the predominance of one or other 
party, it shifts more slowly than in bodies directly chosen all 
at once, and a policy is therefore less apt to be suddenly re¬ 
versed. 

The legislative powers of the Senate being, except in one 
point, the same as those of the House of Representatives, will 
be described later. That one point is a restriction as regards 
money bills. On the ground that it is only by the direct rep¬ 
resentatives of the people that taxes ought to be levied, and in 
obvious imitation of the venerable English doctrine, which had 
already found a place in several State constitutions, the Consti¬ 
tution (Art. i. § 7) provides that “All bills for raising revenue 
shall originate in the House of Representatives, but the Senate 
may propose or concur with amendments, as on .other J ulia.” 
In practice, while the House strictly guards its right of origination, 
the Senate largely exerts its power of amendment, and wrangles 
with the House over taxes, and still more keenly over appropria¬ 
tions. Almost every session ends with a dispute, a conference, 
a compromise. Among the rules (a few extracts from which, 
touching some noteworthy points, will be found in the Appendix) 
there is none providing for a closure of debate (although an 
attempt to introduce such a rule was made by Henry Clay, and 
renewed in 1890), nor any limiting the length either of a debate 
or of a speech. The Senate is proud of having conducted its 
business without the aid of such regulations, and this has been 
due, not merely to the small size of the assembly, but to the sense 
of its dignity which has usually pervaded its members, and to 



CHAP. X 


THE SENATE 


105 


the power which the opinion of the whole body has exercised 
on each. Where every man knows his colleagues intimately, 
each, if he has a character to lose, stands in awe of the others, 
and has so strong a sense of his own interest in maintaining the 
moral authority of the Chamber, that he is slow to resort to 
methods which might lower it in public estimation. Till 
recently, systematic obstruction, or, as it is called in America, 
“filibustering,” familiar to the House, was almost unknown in 
the calmer air of the Senate. When it was applied some time 
ago by the Democratic senators to stop a bill to which they 
strongly objected, their conduct was not disapproved by the 
country, because the whole party, a minority then little 
smaller than the Republican majority, supported it, and people 
believed that nothing but some strong reason would have 
induced the whole party so to act. Accordingly the majority 
yielded. 

The absence of a closure rule is a fact of great political mo¬ 
ment. In 1890 it prevented the passage of a bill, already 
accepted by the House, for placing Federal elections under the 
control of Federal authorities, a measure which would have 
powerfully affected the Southern States, and might possibly 
have raised civil commotions. 

Divisions are taken, not by separating the senators into 
lobbies and counting them, as in the British Parliament, but 
by calling the names of senators alphabetically. The Constitu¬ 
tion provides that one-fifth of those present may demand that 
the Yeas and Nays be entered in the journal. Every senator 
answers to his name with Aye or No. He may, however, ask 
the leave of the Senate to abstain from voting; and if he is 
paired, he states, when his name is called, that he has paired 
with such and such another senator, and is thereupon excused. 

When the Senate goes into executive session, the galleries 
are cleared and the doors closed; and the obligation of secrecy 
is supposed to be enforced by the penalty of expulsion to which 
a senator, disclosing confidential proceedings, makes himself 
liable. Practically, however, newspaper men find little diffi¬ 
culty in ascertaining what passes in secret session. 1 The threat- 

1 It used to be said that secrecy was better observed in the case of discus¬ 
sions on treaties than where appointments are in question. Once a Western 
newspaper published an account of what took place in a secret session. A com¬ 
mittee appointed to inquire into the matter questioned every senator. Each 




106 


THE NATIONAL GOVERNMENT 


PART. I 


ened punishment has never been inflicted, and occasions often 
arise when senators feel it to be desirable that the public should 
know what they and their colleagues have been doing. There 
have been movements within the Senate against maintaining 
secrecy, particularly with regard to the confirming of nomina¬ 
tions to office; and there is also a belief in the country that 
publicity would make for purity. But while some of the black 
sheep of the Senate love darkness because their works are evil, 
other members of undoubted respectability defend the present 
system because they think it supports the power and dignity 
of their body. 

swore that he had not divulged the proceedings, and the newspaper people also 
swore that their information did not come from any senator. Nothing could be 
ascertained, and nobody was punished. 



CHAPTER XI 


THE SENATE AS AN EXECUTIVE AND JUDICIAL BODY 

The Senate is not only a legislative but also an executive 
Chamber ; in fact in its early days the executive functions seem 
to have been thought the more important; and Hamilton 
went so far as to speak of the national executive authority as 
divided between two branches, the President and the Senate. 
These executive functions are two, the power of approving trea¬ 
ties, and that of confirming nominations to office submitted 
by the President. 

To what has already been said regarding the functions of 
the President and Senate as regards treaties (see above, Chap¬ 
ter VI.) I need only add that the Senate through its right of 
confirming or rejecting engagements with foreign powers, 
secures a general control over foreign policy; though it must 
be remembered that many of the most important acts done in 
this sphere (as for instance the movement of troops or ships) 
are purely executive acts, not falling under this control. It is 
in the discretion of the President whether he will communi¬ 
cate current negotiations to it and take its advice upon them, 
or will say nothing till he lays a completed treaty before it. 
One or other course is from time to time followed, according 
to the nature of the case, or the degree of friendliness existing 
between the President and the majority of the Senate. But 
in general, the President's best policy is to keep the leaders 
of the senatorial majority, and in particular the committee 
on Foreign Relations, informed of the progress of any pending 
negotiation. He thus feels the pulse of the Senate, which, 
like other assemblies, has a collective self-esteem leading it to 
strive for all the information and power it can secure, and while 
keeping it in good humour, can foresee what kind of arrange¬ 
ment it may be induced to sanction. Much depends upon the 
confidence which the Senate feels in the judgment of the Secre¬ 
tary of State and on the tact which he shows in his dealings 

107 


108 


THE NATIONAL GOVERNMENT 


PART I 


with senators. The right of going into secret session enables 
the whole Senate to consider despatches communicated by the 
President; and though treaties are sometimes considered in 
open session, important matters having first been submitted to 
the Foreign Relations committee, can thus be discussed without 
the disadvantage of publicity. Of course no momentous secret 
can be long kept, 1 even by the committee, according to the prov¬ 
erb in the Elder Edda—“Tell one man thy secret, but not 
two; if three know, the world knows.” 

This control of foreign policy by the Senate does something 
to meet the difficulties which popular governments find in 
dealing with foreign Powers. If each step to be taken must 
be previously submitted to the ruling assembly, the nation 
is forced to show its whole hand, and precious opportunities 
of winning an ally or striking a bargain may be lost. If on 
the other hand the executive is permitted to conduct nego¬ 
tiations in secret, there is always the risk, either that the as¬ 
sembly may disavow what has been done, a risk which makes 
foreign states legitimately suspicious and unwilling to nego¬ 
tiate, or that the nation may have to ratify, because it feels 
bound in honour by the act of its executive agents, arrange¬ 
ments which its judgment condemns. Participation by the 
Senate in negotiations diminishes these difficulties, because 
it apprises the executive of what the judgment of the ratify¬ 
ing body is likely to be, and it commits that body by advance. 
The necessity of ratification by the Senate in order to give 
effect to a treaty, enables the country to retire from a doubtful 
bargain, though in a way which other Powers find disagreeable, 
as England did when the Senate rejected the Reverdy Johnson 
treaty of 1869. European statesmen may ask what becomes 
under such a system of the boldness and promptitude so often 
needed to effect a successful coup in foreign policy, or how a 
consistent attitude can be maintained if there is in the chairman 
of the Foreign Relations committee a sort of second foreign 
secretary. The answer is that America is not Europe. The 
problems which the State Department of the United States has 
had to deal with have been far fewer and usually far simpler 
than are those of the Old World. The republic, though her 
power has now crossed the Pacific, keeps consistently to her 

1 Csesar Borgia complained that the Florentine Republic could not keep a 
secret. 



chap, xi SENATE : EXECUTIVE AND JUDICIAL BODY 109 


own side of the Atlantic ; and it is a merit of the system of sena¬ 
torial control that it has tended, by discouraging the executive 
from schemes which may prove resultless, to diminish the taste 
for foreign enterprises, and to save the country from being 
entangled with alliances, protectorates, responsibilities of all 
sorts beyond its own frontiers. It is the easier for the Ameri¬ 
cans to practise this reserve because they need no alliances, 
standing unassailable in their own hemisphere. The circum¬ 
stances of England, with her powerful European neighbours, her 
Indian Empire, and her colonies scattered over the world, are 
widely different. Yet different as the circumstances of England 
are, the day may come when in England the question of limiting 
the at present wide discretion of the executive in foreign affairs 
will have to be dealt with. 1 The example of the American 
Senate may then be cited, but there is of course this important 
difference between the two countries, that in England Parliament 
can dismiss ministers who have concluded a treaty which it 
disapproves, whereas in the United States a President, not being 
similarly removable by Congress, would be exempt from any 
control were the Senate not associated with him in the making 
of a treaty. 

The Senate may and occasionally does amend a treaty, and 
return it amended to the President. There is nothing to pre¬ 
vent it from proposing a draft treaty to him, or asking him to 
prepare one, but this is not the practice. For ratification a 
vote of two-thirds of the senators present is required. This 
gives great power to a vexatious minority, and increases the 
danger, evidenced by several incidents in the history of the 
Union, that the Senate or a faction in it may deal with foreign 
policy in a narrow, sectional, electioneering spirit. When the 
interest of any group of States is, or is supposed to be, against 
the making of a given treaty, that treaty may be defeated by 
the senators from those States. They tell the other senators 
of their own party that the prospects of the party in the dis¬ 
trict of the country whence they come will be improved if the 
treaty is rejected and a bold aggressive line is taken in further 

1 Parliament of course may and sometimes does interfere; but the majority 
which supports the ministry of the day usually forbears to press the Foreign 
Office for information which it is declared to be undesirable to furnish. 

In 1886 a resolution was all but carried in the House of Commons, desiring 
all treaties to be laid before Parliament for its approval before being finally 
concluded. 




110 


THE NATIONAL GOVERNMENT 


PART 1 


negotiations. Some of these senators, who care more for the 
party than for justice or the common interests of the country, 
rally to the cry, and all the more gladly if their party is op¬ 
posed to the President in power, because in defeating the 
treaty they humiliate his administration. Thus the treaty 
may be rejected, and the settlement of the question at issue 
indefinitely postponed. It may be thought that a party acting 
in this vexatious way will suffer in public esteem. This hap¬ 
pens in extreme cases; but the public are usually so indif¬ 
ferent to foreign affairs, and so little skilled in judging of them, 
that offences of the kind described may be committed with 
practical impunity. It is harder to fix responsibility on a 
body of senators than on the executive; and whereas the 
executive has usually an interest in settling diplomatic troubles, 
whose continuance it finds annoying, the Senate has no such 
interest, but is willing to keep them open so long as some po¬ 
litical advantage can be sucked out of them. The habit of 
using foreign policy for electioneering purposes is not confined 
to America. It has been seen in England, and in France, and 
even in monarchical Germany. But in America the treaty¬ 
confirming power of the Senate opens a particularly easy and 
tempting door to such practices. 

The other executive function of the Senate, that of con¬ 
firming nominations submitted by the President, has been 
discussed in the chapter on the powers of that officer. It is 
there explained how senators have used their right of confir¬ 
mation to secure for themselves a huge mass of Federal patron¬ 
age, and how by means of this right, a majority hostile to 
the President can thwart and annoy him. Sometimes he ought 
to be thwarted : yet the protection which the Senate provides 
against abuses of his nominating power is far from complete. 

Does the control of the Senate operate to prevent abuses of 
patronage by the President ? To some extent it does, yet less 
completely than could be wished. When the majority belongs 
to the same party as the President, appointments are usually 
arranged, or to use a familiar expression, “ squared,” between 
them, with a view primarily to party interests. When the 
majority is opposed to the President, they are tempted to agree 
to his worst appointments, because such appointments discredit 
him and his party with the country, and become a theme of 
hostile comment in the next electioneering campaign. As the 



chap, xi SENATE: EXECUTIVE AND JUDICIAL BODY 111 


initiative is his, it may be the nominating President, and not the 
confirming Senate, whom public opinion will condemn. These 
things being so, it has been doubted whether this executive func¬ 
tion of the Senate is now a valuable part of the Constitution. 
It was designed to prevent the President from making himself 
a tyrant by filling the great offices with his accomplices or tools. 
That danger has passed away, if it ever existed; and Congress 
has other means of muzzling an ambitious chief magistrate. 
The more fully responsibility for appointments can be concen¬ 
trated upon him, and the fewer the secret influences to which 
he is exposed, the better will his appointments be. On the 
other hand, it must be admitted that the participation of the 
Senate causes in practice less friction and delay than might 
have been expected from a dual control. The appointments to 
the cabinet offices are confirmed as a matter of course. Those 
of diplomatic officers are seldom rejected. “ Little tiffs” are 
frequent when the senatorial majority is in opposition to the 
executive, but the machinery, if it does not work smoothly, 
works well enough to carry on the ordinary business of the 
country, though a European observer, surprised that a demo¬ 
cratic country allows such important business to be transacted 
with closed doors, is inclined to agree with the view lately 
advanced in the Senate that nominations ought to be discussed 
publicly rather than in secret executive session. 

The judicial function of the Senate is to sit as a High Court 
for the trial of persons impeached by the House of Representa¬ 
tives. The senators “are on oath or affirmation,” and a vote 
of two-thirds of those present is needed for a conviction. Of 
the process, as affecting the President, I have spoken in Chapter 
V. It is applicable to other officials. Besides President 
Johnson, eight persons in all have been impeached, viz.: — 

Six Federal judges, of whom three were acquitted, and three 
convicted, one for violence and drunkenness, another for having 
joined the Secessionists of 1861, a third (a judge of the Com¬ 
merce Court) for conduct in pending suits which tended to his 
own profit. Impeachment is the only means by which a Federal 
judge can be got rid of. 

One senator, who was acquitted for want of jurisdiction, the 
Senate deciding that a senatorship is not a “civil office” within 
the meaning of Art. iii. § 4 of the Constitution. 

One minister, a secretary of war, who resigned before the 




112 


THE NATIONAL GOVERNMENT 


PART I 


impeachment was actually preferred, and escaped on the ground 
that being a private person he was not impeachable. 

Rarely as this method of proceeding has been employed, it 
could not be dispensed with; and it is better that the Senate 
should try cases in which a political element is usually pres¬ 
ent, than that the impartiality of the Supreme court should be 
exposed to the criticism it would have to bear, did such political 
questions come before it. Many senators are or have been 
lawyers of eminence, so that so far as legal knowledge goes 
they are competent members of a court. 



CHAPTER XII 


THE SENATE : ITS WORKING AND INFLUENCE 

Most Americans consider the Senate one of the successes of 
their constitution, a worthy monument of the wisdom and 
foresight of its founders. Foreign observers have repeated 
this praise, and have perhaps, in their less perfect knowledge, 
sounded it even more loudly. 

The aims with which the Senate was created, the purposes 
it was to fulfil, are set forth, under the form of answers to objec¬ 
tions, in five letters (lxi.-lxv.), all by Alexander Hamilton, in 
the Federalist. 1 These aims were the five following: — 

To conciliate the spirit of independence in the several States, 
by giving each, however small, equal representation with every 
other, however large, in one branch of the national government. 

To create a council qualified, by its moderate size and the 
experience of its members, to advise and check the President 
in the exercise of his powers of appointing to office and con¬ 
cluding treaties. 

To restrain the impetuosity and fickleness of the popular 
House, and so guard against the effects of gusts of passion or 
sudden changes of opinion in the people. 

To provide a body of men whose greater experience, longer 
term of membership, and comparative independence of popular 
election, would make them an element of stability in the gov¬ 
ernment of the nation, enabling it to maintain its character in 
the eyes of foreign States, and to preserve a continuity of 
policy at home and abroad. 

To establish a Court proper for the trial of impeachments, a 
remedy deemed necessary to prevent abuse of power by the 
executive. 

All of these five objects have been more or less perfectly 
attained; and the Senate has acquired a position in the govern- 

1 See also Hamilton’s speeches in the New York Convention. Elliots 
Debates, ii. p. 301 sqq. 

I 


113 


114 


THE NATIONAL GOVERNMENT 


PART I 


ment which Hamilton scarcely ventured to hope for. In 1788 
he wrote: “Against the force of the immediate representa¬ 
tives of the people, nothing will be able to maintain even the 
constitutional authority of the Senate, but such a display of 
enlightened policy, and attachment to the public good, as 
will divide with the House of Representatives the affections 
and support of the entire body of the people themselves.” 

It may be doubted whether the Senate has excelled the 
House in attachment to the public good; but it has certainly 
shown greater capacity for managing the public business, and 
gained the respect, if not the affections, of the people, by its 
sustained intellectual power. 

The Federalist did not think it necessary to state, nor have 
Americans generally realized, that this masterpiece of the 
Constitution-makers was in fact a happy accident. No one in 
the Convention of 1787 set out with the idea of such a Senate 
as ultimately emerged from their deliberations. It grew up 
under the hands of the Convention, as the result of the neces¬ 
sity for reconciling the conflicting demands of the large and 
the small States. The concession of equal representation in 
the Senate induced the small States to accept the principle of 
representation according to population in the House of Rep¬ 
resentatives ; and a series of compromises between the advo¬ 
cates of popular power, as embodied in the House, and those 
of monarchical power, as embodied in the President, led to the 
allotment of attributes and functions which have made the 
Senate what it is. When the work which they had almost 
unconsciously perfected was finished, the leaders of the Con¬ 
vention perceived its excellence, and defended it by arguments 
in which we feel the note of sincere conviction. Yet the con¬ 
ception they formed of it differed from the reality which has 
been evolved. Although they had created it as a branch of 
the legislature, they thought of it as being first and foremost 
a body with executive functions. And this, at first, it was. 
The traditions of the old Congress of the Confederation, in 
which the delegates of the States voted by States, the still 
earlier traditions of the executive councils, which advised the 
governors of the colonies while still subject to the British 
Crown, clung about the Senate and affected the minds of the 
senators. It was a small body, originally of twenty-six, even 
in 1810 of thirty-four members only, a body not ill fitted for 



chap, xii SENATE : WORKING AND INFLUENCE 


lid 


executive work. Its members, regarding themselves as a sort 
of congress of ambassadors from their respective States, were 
accustomed to refer for advice and instructions each to his 
State legislature. So late as 1828, a senator after arguing 
strongly against a measure declared that he would neverthe¬ 
less vote for it, because he believed his State to be in its favour. 1 
For the first five years of its existence, the Senate sat with 
closed doors, occupying itself chiefly with the confidential 
business of appointments and treaties, and conferring in pri¬ 
vate with the ministers of the President. Not till 1816 did 
it create, in imitation of the House, those Standing Commit¬ 
tees which the experience of the House had shown to be, in 
bodies where the executive ministers do not sit, the necessary 
organs for dealing with legislative business. Its present char¬ 
acter as a legislative body, not less active and powerful than 
the other branch of Congress, is the result of a long process 
of evolution, a process possible (as will be more fully explained 
hereafter) even under the rigid Constitution of the United States, 
because the language of the sections which define the compe¬ 
tence of the Senate is wide and general. But in gaining legis¬ 
lative authority, it has not lost its executive functions, although 
those which relate to treaties are largely exercised on the advice 
of the standing Committee on Foreign Relations. And as re¬ 
spects these executive functions it stands alone in the world. 
No European state, no British colony, entrusts to an elective 
assembly that direct participation in executive business which 
the Senate enjoys. 

What is meant by saying that the Senate has proved a success ? 

It has succeeded by effecting that chief object of the Fathers 
of the Constitution, the creation of a centre of gravity in the 
government, an authority able to correct and check on the one 
hand the “democratic recklessness” of the House, on the other 
the “monarchical ambition” of the President. Placed between 
the two, it is necessarily the rival and often the opponent of 
both. The House can accomplish nothing without its con¬ 
currence. The President can be checkmated by its resistance. 


1 A similar statement was made in 1883 by a senator from Arkansas in justi¬ 
fying his vote for a bill he disapproved. But the fact that from early days 
downwards the two senators from a State might (and did) vote against one 
another shows that the true view of the senator is that he represents the people 
and not the government of his State. 



116 


THE NATIONAL GOVERNMENT 


PART 1 


These are, so to speak, negative or prohibitive successes. It has 
achieved less in the way of positive work, whether of initiating 
good legislation or of improving the measures which the House 
sends it. But the whole scheme of the American Constitution 
tends to put stability above activity, to sacrifice the productive 
energies of the bodies it creates to their power of resisting changes 
in the general fabric of the government. The Senate has suc¬ 
ceeded in making itself eminent and powerful. It has drawn 
the best talent of the nation, so far as that talent flows to politics, 
into its body, has established an intellectual supremacy, has 
furnished a vantage ground from which men of ability may 
speak with authority to their fellow-citizens. 

To what causes are these successes to be ascribed? Hamil¬ 
ton assumed that the Senate would be weaker than the House 
of Representatives, because it would not so directly spring 
from, speak for, be looked to by, the people. This was a 
natural view, especially as the analogy between the position 
of the Senate towards the House of Representatives in America, 
and that of the House of Lords towards the House of Com¬ 
mons in Great Britain, an analogy constantly present to the 
men of 1787, seemed to suggest that the larger and more pop¬ 
ular chamber must dwarf and overpower the smaller one. 
But the Senate has proved no less strong, and more intellec¬ 
tually influential, than its sister House of Congress. The analogy 
was unsound, because the British House of Lords is hereditary 
and the Senate representative. In these days no hereditary 
assembly, be its members ever so able, ever so wealthy, ever 
so socially powerful, can speak with the authority which belongs 
to those who speak for the people. Mirabeau’s famous words 
in the Salle des Menus at Versailles, “We are here by the will 
of the people, and nothing but bayonets shall send us hence,” 
express the whole current of modern feeling. Now the Senate, 
albeit not chosen by direct popular election, does represent 
the people; and what it may lose through not standing in im¬ 
mediate contact with the masses, it gains in representing such 
ancient and powerful commonwealths as the States. A senator 
from New York or Illinois speaks for, and is responsible to, 
millions of men. No wonder he has an authority beyond that 
of the long-descended nobles of Prussia, or the peers of Britain 
whose possessions stretch over whole counties. 

This is the first reason for the strength of the Senate, as 



chap, xii SENATE : WORKING AND INFLUENCE 


117 


compared with the upper chambers of other countries. It is 
built on a solid foundation of ultimate choice by the people 
and consequent responsibility to them. A second cause is to 
be found in its small size. A small body educates its members 
better than a large one, because each member has more to do, 
sooner masters the business not only of his committee but of 
the whole body, feels a livelier sense of the significance of his 
own action in bringing about collective action. There is less 
disposition to abuse the freedom of debate. Party spirit may 
be as intense as in great assemblies, yet it is mitigated by the 
wish to keep on friendly terms with those whom, however 
much you may dislike them, you have constantly to meet, and 
by the feeling of a common interest in sustaining the authority 
of the body. A senator soon gets to know each of his colleagues 
— they were originally only twenty-five — and what each of 
them thinks of him; he becomes sensitive to their opinion; 
he is less inclined to pose before them, however he may pose 
before the public. Thus the Senate formed, in its childhood, 
better habits in discussing and transacting its business than 
would have been formed by a large assembly; and these habits 
its maturer age retains. Its comparative permanence has also 
worked for good. Six years, Which seem a short term in Europe, 
are in America a long term when compared with the two years 
for which the House of Representatives and the Assemblies of 
nearly all the States are elected, long also when compared with 
the swiftness of change in American politics. A senator has the 
opportunity of thoroughly learning his duties, and of proving 
that he has learnt them. He becomes slightly more independent 
of his constituency, which in America, where politicians catch 
at every passing breeze of opinion, is a clear gain. Nevertheless 
he must be frequently at work in his State, and struggle to main¬ 
tain his influence among local politicians there. 

The smallness and the permanence of the Senate have how¬ 
ever another important influence on its character. They contrib¬ 
ute to one main cause of its success, the superior intellectual 
quality of its members. Every European who has described 
it, has dwelt upon the capacity of those who compose it, and 
most have followed Tocqueville in attributing this capacity 
to the method of double election. In supposing that the choice 
of senators by the State legislature had proved a better means 
than direct choice by the people of discovering and selecting the 



118 


THE NATIONAL GOVERNMENT 


PART I 


fittest men they missed the real cause. I have already remarked 
that since the Civil War the legislatures did little more than 
register and formally complete a choice already made by the 
party managers, and perhaps ratified in the party convention. 
But apart from this recent development, and reviewing the 
whole hundred years’ history of the Senate, the true explana¬ 
tion of its capacity is to be found in the superior attraction 
which it has for the ablest and most ambitious men. A sen¬ 
ator has more power than a member of the House, more dig¬ 
nity, a longer term of service, a more independent position. 
Hence every Federal politician aims at a senatorship, and looks 
on the place of Representative as a stepping-stone to what 
may fairly be called an Upper House, because it is the House 
to which Representatives seek to mount. It is no more sur¬ 
prising that the average capacity of the Senate should sur¬ 
pass that of the House, than that the average cabinet minister 
of Europe should be abler than the average member of the 
legislature. 

What is more, the Senate so trains its members as to improve 
their political efficiency. Several years of service in a small 
body, with important and delicate executive work, are worth 
twice as many years of jostling in the crowd of representatives 
at the other end of the Capitol. If the Senate does not find the 
man who enters it already superior to the average of Federal 
politicians, it ought to make him superior. But natural selec¬ 
tion, as has been said, usually seats upon its benches the best 
ability of the country that has flowed into political life, and would 
do so no less were the election in form a direct one by the people 
at the polls. 

Most of the leading men of the last century have sat in 
the Senate, and in it were delivered most of the famous 
speeches which illumine, though too rarely, the wearisome 
debates over State rights and slavery from 1825 till 1860. 
One of these debates, that in the beginning of 1830, which 
called forth Daniel Webster’s majestic defence of the Con¬ 
stitution, was long called par excellence “the great debate in 
the Senate.” 1 

Of the 92 senators who sat in the sixty-first Congress (1909-11) 
36 had sat in the other House of Congress, and 39 had served 

1 In those days the Senate sat in that smaller chamber which is now occu¬ 
pied by the Supreme Federal Court. 



chap, xii SENATE : WORKING AND INFLUENCE 


119 


in State legislatures. 1 In the sixty-second Congress (1911-1913) 
out of 96 senators, 28 had sat in the House of Representatives, 
and 39 in State legislatures. Many had been judges or State 
governors; many had sat in State conventions. Nearly all 
had held some public function. A man must have had con¬ 
siderable experience of affairs, and of human nature in its less 
engaging aspects, before he enters this august conclave. But 
experience is not all gain. Practice makes perfect in evil-doing 
no less than in well-doing. The habits of local politics and of 
work in the House of Representatives by which the senators 
have been trained, while they develop shrewdness and quickness 
in all characters, tell injuriously on characters of the meaner 
sort, leaving men’s views narrow, and giving them a taste as well 
as a talent for intrigue. 

The chamber in which the Senate meets is rectangular, but 
the part occupied by the seats is semicircular in form, the 
Vice-President of the United States, who acts as presiding officer, 
having his chair on a marble dais, slightly raised, in the centre 
of the chord, with the senators all turned towards him as they 
sit in curving rows, each in an arm-chair, with a desk in front of 
it. The floor is about as large as the whole superficial area of the 
British House of Commons, but as there are great galleries on 
all four sides, running back over the lobbies, the upper part of the 
chamber and its total air-space much exceeds that of the English 
house. One of these galleries is appropriated to the President of 
the United States; the others to ladies, diplomatic representa¬ 
tives, the press, and the public. Behind the senatorial chairs 
and desks there is an open space into which strangers can be 
brought by the senators, who sit and talk on the sofas there 
placed. Members of foreign legislatures are allowed access to 
this outer “ floor of the Senate.” There is, especially when the 
galleries are empty, a slight echo in the room, which obliges most 
speakers to strain their voices. Two or three pictures on the walls 
somewhat relieve the cold tone of the chamber, with its mar¬ 
ble platform and sides unpierced by windows, for the light enters 
through glass compartments in the ceiling. 


1 1 cannot be sure of the absolute actual accuracy of these figures, which I 
have compiled from the Congressional Directory, because some senators do 
not set forth the whole of their political career. The proportion of senators 
who have previously been members of the House of Representatives has usually 
been larger among the senators from the older States than it is in the West. 




120 


THE NATIONAL GOVERNMENT 


PAKT I 


A senator always addresses the Chair “Mr. President,” and 
refers to other senators by their States, “The senator from 
Ohio,” “The senator from Tennessee.” When two senators 
rise at the same moment, the Chair calls on one, indicating him 
by his State, “The senator from Minnesota has the floor.” 1 
Senators of the Democratic party apparently always have sat 
on the right of the chair, Republican senators on the left; but, 
as already explained, the parties do not face one another. The 
impression which the place makes on a visitor is one of business¬ 
like gravity, a gravity which though plain is dignified. It has 
the air not so much of a popular assembly as of a diplomatic 
congress. The English House of Lords, with its fretted roof 
and windows rich with the figures of departed kings, its majestic 
throne, its Lord Chancellor in his wig on the woolsack, its benches 
of lawn-sleeved bishops, its bar where the Commons throng at 
a great debate, is not only more gorgeous and picturesque in 
externals, but appeals far more powerfully to the historical 
imagination, for it seems to carry the middle ages down into the 
modern world. The Senate is modern, severe, and practical. 
So, too, few debates in the Senate rise to the level of the best 
debates in the English chamber. But the Senate seldom wears 
that air of listless vacuity and superannuated indolence which 
the House of Lords presents on all but a few nights of every 
session. The faces are keen and forcible, as of men who have 
learned to know the world, and have much to do in it; the place 
seems consecrated to great affairs. 

As might be expected from the small number of the audience, 
as well as from its character, discussions in the Senate are apt 
to be sensible and practical. Speeches are shorter and less 
fervid than those made in the House of Representatives, for the 
larger an assembly the more prone is it to declamation. The 
least useful debates are those on show-days, when a series of 
set discourses are delivered on some prominent question. Each 
senator brings down and fires off in the air a carefully-prepared 
oration which may have little bearing on what has gone before. 

1 A late President of the Senate was in the habit of distinguishing the two 
senators from the State of Arkansas, by calling on one as the senator for “Ar¬ 
kansas” (pronounced as written, with accent on the penult), and the other 
as the senator for “Arkansaw,” with the second syllable short. As Europeans 
often ask which is the correct pronunciation, I may say that in 1904 the legis¬ 
lature of Arkansas by a “joint resolution” declared that the accent ought to be 
on the first and last syllables, and that the final s ought not to be sounded. 



chap, xii SENATE : WORKING AND INFLUENCE 


121 


In fact the speeches are made not to convince the assembly,— 
no one dreams of that, — but to keep a man’s opinions before 
the public and sustain his fame. The question at issue has 
usually been already settled, either in a committee or in a “ cau¬ 
cus” of the party which commands the majority, so that these 
long and sonorous harangues are mere rhetorical thunder ad¬ 
dressed to the nation outside. 

The Senate now contains many men of great wealth. Some, 
an increasing number, are senators because they are rich; a 
few are rich because they are senators; while in the remaining 
cases the same talents which have won success in law or com¬ 
merce have brought their possessor to the top in politics also. 
The commercial element is stronger now than formerly : but the 
majority are or have been lawyers. Some senators used to 
practise before the Supreme court, but that is now rare. Com¬ 
plaints are occasionally levelled against the aristocratic ten¬ 
dencies which wealth is supposed to have bred, and sarcastic 
references are made to the sumptuous residences which senators 
have built on the new avenues of Washington. While admitting 
that there is more sympathy for the capitalist class among these 
rich men than there would be in a Senate of poor men, I must 
add that the Senate is far from being a class body like the upper 
houses of Britain or Prussia or Spain or Denmark. It is sub¬ 
stantially representative, by its composition as well as by legal 
delegation, of all parts of American society; it is too dependent, 
and too sensible that it is dependent, upon public opinion, to 
undertake the championship of the rich, although doubtless 
more in sympathy with them than is the House. The senators, 
however, indulge some social pretensions. They are the nearest 
approach to an official aristocracy that has yet been seen in 
America. They and their wives are allowed precedence at 
private entertainments, as well as on public occasions, over 
members of the House, and of course over private citizens. 
Jefferson might turn in his grave if he knew of such an attempt 
to introduce European distinctions of rank into his democracy; 
yet, as the office is temporary, and the rank vanishes with the 
office, these pretensions are harmless; it is only the universal 
social equality of the country that makes them noteworthy. 
Apart from such petty advantages, the position of a senator 
who can count on re-election, is the most desirable in the political 
world of America. It gives as much power and influence as a 



122 


THE NATIONAL GOVERNMENT 


PART 1 


man need desire. It secures for him the ear of the public. It 
is more permanent than the Presidency or a cabinet office, re¬ 
quires less labour, involves less vexation, though still great 
vexation, by importunate office-seekers. 

European writers on America used to be too much inclined 
to idealize the Senate. Admiring its structure and function, 
they assumed that the actors must be worthy of their parts. 
They were encouraged in this tendency by the language of 
many Americans. As the Romans were never tired of repeating 
that the ambassador of Pyrrhus had called the Roman senate an 
assembly of kings, so Americans of refinement, who were ashamed 
of the turbulent House of Representatives, were at one time 
wont to talk of the Senate as an Olympian dwelling-place 
of statesmen and sages. That it never was; and still less would 
anybody now so describe it. It is a company of shrewd and 
vigorous men who have fought their way to the front by the 
ordinary methods of American politics, and on many of whom the 
battle has left its stains. There are abundant opportunities for 
intrigue in the Senate, because its most important business is 
done in the secrecy of committee rooms or of executive session ; 
and many senators are intriguers. There are opportunities for 
misusing senatorial powers. Scandals have sometimes arisen 
from the practice of employing as counsel before the Supreme 
court, senators whose influence has contributed to the appoint¬ 
ment or confirmation of the judges. 1 There are opportunities 
for corruption and blackmailing, of which unscrupulous men are 
well known to take advantage. Such men are fortunately few; 
but considering how demoralized are the legislatures of a few 
States, their presence must be looked for; and the rest of the 
Senate, however it may blush for them, is obliged to work with 
them and to treat them as equals. The contagion of political 
vice is nowhere so swiftly potent as in legislative bodies, be¬ 
cause you cannot taboo a man who has got a vote. You may 
loathe him personally, but he is the people’s choice. He has 
a right to share in the government of the country; you are 
grateful to him when he saves you on a critical division; you 
discover that “he is not such a bad fellow when one knows 


1 In 1886, a bill was brought in forbidding members of either House of Con¬ 
gress to appear in the Federal courts as counsel for any railroad company or 
other corporation which might, in respect of its having received land grants, 
be affected by Federal legislation. 



jhap. xii SENATE : WORKING AND INFLUENCE 


123 


him ” ; people remark that he gives good dinners, or has an 
agreeable wife; and so it goes on till falsehood and knavery 
are covered under the cloak of party loyalty. 

As respects ability, the Senate cannot be profitably compared 
with the English House of Lords, because that assembly con¬ 
sists of some thirty eminent and as many ordinary men attend¬ 
ing regularly, with a multitude of undistinguished persons who 
rarely appear, and take no share in the deliberations. Setting 
the Senate beside the House of Commons, the average natural 
capacity of its ninety-six members is not above that of the 
ninety-six best men in the English House. There is more variety 
of talent in the latter, and a greater breadth of culture. On the 
other hand, the Senate excels in legal and business knowledge as 
well as in practical shrewdness. The House of Commons con¬ 
tains more men who could give a good address on a literary or 
historical subject; the Senate, together with a very few eminent 
lawyers, has more who could either deliver a rousing popular 
harangue or manage the business of a great trading company, 
these being the forms of capacity commonest among congres¬ 
sional politicians. An acute American observer said (writing in 
1885) and the description is still true : 

“The Senate is just what the mode of its election and the conditions 
of public life in this country make it. Its members are chosen from 
the ranks of active politicians, in accordance with a law of natural 
selection to which the State legislatures are commonly obedient; and 
it is probable that it contains, consequently, the best men that our 
system calls into politics. If these best men are not good, it is because 
our system of government fails to attract better men by its prizes, not 
because the country affords or could afford no finer material. The 
Senate is in fact, of course, nothing more than a part, though a con¬ 
siderable part, of the public service ; and if the general conditions of 
that service be such as to starve statesmen and foster demagogues, the 
Senate itself will be full of the latter kind, simply because there are no 
others available.” 1 

This judgment is severe, but not unjust. Whether the sena¬ 
tors of to-day are inferior in ability and integrity to those of 
seventy, forty, twenty years ago, is not easy to determine. But 
it must be admitted, however regretfully, that they are less 
independent, less respected by the people, less influential with 
the people, than were their predecessors; and their wealth, 


1 Woodrow Wilson, Congressional Government, p. 194. 



124 


THE NATIONAL GOVERNMENT 


PART I 


which has made them fear the reproach of wanting popular 
sympathies, may count for something in this decline. 

The place which the Senate holds in the constitutional sys¬ 
tem of America cannot be fully appreciated till the remaining 
parts of that system have been described. This much, how¬ 
ever, may be claimed for it, that it has been and is still, though 
perhaps less than formerly, a steadying and moderating power. 
One cannot say, in the language of European politics, that it 
has represented aristocratic principles, or anti-popular princi¬ 
ples, or even conservative principles. Each of the great his¬ 
toric parties has in turn commanded a majority in it, and the 
difference between their strength has seldom been marked for 
any great while. On none of the great issues that have di¬ 
vided the nation has the Senate been, for any long period, 
decidedly opposed to the other House of Congress. It showed 
no more capacity than the House for grappling with the prob¬ 
lems of slavery extension. It was scarcely less ready than the 
House to strain the Constitution by supporting Lincoln in the 
exercise of the so-called war powers, or subsequently by cut¬ 
ting down presidential authority in the struggle between Con¬ 
gress and Andrew Johnson, though it refused to convict him 
when impeached by the House. All the fluctuations of public 
opinion tell upon it, nor does it venture, any more than the 
House, to confront a popular impulse, because it is, equally 
with the House, subject to the control of the great parties, 
which seek to use while they obey the dominant sentiment of 
the hour. 

But the fluctuations of opinion tell on it less energetically 
than on the House of Representatives. They reach it more 
slowly and gradually, owing to the system which renews it by 
one-third every second year, so that it sometimes happens that 
before the tide has risen to the top of the flood in the Senate it 
has already begun to ebb in the country. The Senate has been a 
stouter bulwark against agitation, not merely because a majority 
of the senators have always four years of membership before 
them, within which period public feeling may change, but also 
because the senators have been individually stronger men than 
the representatives. They are less democratic, not in opinion, 
but in temper, because they are more self-confident, because 
they have more to lose, because experience has taught them 
how fleeting a thing popular sentiment is, and how useful a 



chap, xii SENATE : WORKING AND INFLUENCE 


125 


thing continuity in policy is. The Senate has therefore usually 
kept its head better than the House of Representatives. It 
has expressed more adequately the judgment, as contrasted 
with the emotion, of the nation; and at least since 1896 it has 
been the body to which property and the financial powers 
chiefly look for support. In this sense it does constitute a 
“check and balance” in the Federal government, though it 
stands lower in popular esteem now than it did half a century 
ago. Of the three great functions which the Fathers of the 
Constitution meant it to perform, the first, that of securing the 
rights of the smaller States, is no longer important; while the 
second, that of advising or controlling the Executive in appoint¬ 
ments as well as in treaties, has given rise to evils possibly 
commensurate with its benefits. But the third duty is still dis¬ 
charged, for “the propensity of a single and numerous assembly 
to yield to the impulse of sudden and violent passions” is fre¬ 
quently, though not invariably, restrained. 



CHAPTER XIII 


THE HOUSE OF REPRESENTATIVES 

The House of Representatives, usually called for shortness, 
the House, represents the nation on the basis of population, as 
the Senate represents the States. 

But even in the composition of the House the States play an 
important part. The Constitution provides 1 that “ representa¬ 
tives and direct taxes shall be apportioned among the several 
States according to their respective numbers,” and under this 
provision Congress allots so many members of the House to 
each State in proportion to its population at the last preceding 
decennial census, leaving the State to determine the districts 
within its own area for and by which the members shall be 
chosen. These districts are now equal or nearly equal in size; 
but in laying them out there is ample scope for the process 
called “gerrymandering ,” 2 which the dominating party in a 
State rarely fails to apply for its own advantage. Where a 
State legislature has failed to redistribute the State into con- 

1 Constitution, Art. i. § 2, par. 3 ; cf. Amendment xiv. § 2. 

2 So called from Elbridge Gerry, a leading Democratic politician in Massa¬ 
chusetts (a member of the Constitutional Convention of 1787, and in 1812 
elected Vice-President of the United States), who when Massachusetts was 
being re-districted contrived a scheme which gave one of the districts a shape 
like that of a lizard. Stuart, the well-known artist, entering the room of an 
editor who had a map of the new districts hanging on the wall over his desk 
observed, “Why, this district looks like a salamander,” and put in the claws 
and eyes of the creature with his pencil. “Say rather a Gerrymander,” re¬ 
plied the editor ; and the name stuck. The aim of gerrymandering, of course, 
is so to lay out the one-membered districts as to secure in the greatest possible 
number of them a majority for the party which conducts the operation. This 
is done sometimes by throwing the greatest possible number of hostile voters 
into a district which is anyhow certain to be hostile, sometimes by adding to a 
district where parties are equally divided some place in which the majority 
of friendly voters is sufficient to turn the scale. Thus a district was carved 
out in Mississippi (the so-called Shoe String district) 500 miles long by 40 
broad, and another in Pennsylvania resembling a dumb-bell. South Carolina 
furnishes some beautiful recent examples. And in Missouri a district was 
contrived longer, if measured along its windings, than the State itself, into 
which as large a number as possible of the negro voters were thrown. 

126 


chap, xiii THE HOUSE OF REPRESENTATIVES 


127 


gressional districts, after the State has received an increase of 
representatives, the additional member or members are elected 
by the voters of the whole State on a general ticket, and are 
called “representatives at large.” Recently one State (Maine) 
elected all its^representatives on this plan, while another (Kan¬ 
sas) elected three by districts and four by general ticket. Each 
district, of course, lies wholly within the limits of one State. 
When a seat becomes vacant the governor of the State issues a 
writ for a new election, and when a member desires to resign 
his seat he does so by letter to the governor. 

The original House which met in 1789 contained only sixty- 
five members, the idea being that there should be one member 
for every 30,000 persons. As population grew and new States 
were added, the number of members was increased. Originally 
Congress fixed the ratio of members to population, and the 
House accordingly grew; but latterly, fearing a too rapid 
increase, it has fixed the number of members with no regard 
for any precise ratio of members to population. Under a statute 
of 1891, the number was fixed at 356, being, according to the 
census of 1890, one member to about 174,000 souls. In 1909, 
the number had reached 391. In 1911, under the census of 
1910, it was increased to 435. Five States, Delaware, Nevada, 
Wyoming, Arizona, New Mexico, have one representative each; 
five have two each; while New York has forty-three, and Penn¬ 
sylvania thirty-six. Besides these full members there are also 
Territorial delegates, one from each of the Territories, regions 
enjoying a species of self-government, but not yet formed into 
States. 1 These delegates sit and speak, but have no right to 
vote, being unrecognized by the Constitution. They are, in 
fact, merely persons whom the House, under a statute, admits 
to its floor and permits to address it. 

The quorum of the House, as of the Senate, is a majority of 
the whole number. Till the Fifty-first Congress the custom 
had been to treat as absent all members who did not answer to 
their names on a roll-call, but in 1890, one party persistently 
refusing to answer in order to prevent the transaction of busi¬ 
ness, Speaker Reed asserted the right of counting for the purposes 
of a quorum all he saw present. A rule was then passed direct¬ 
ing him so to count. This was dropped in the next Congress, 
but in 1894 restored, substituting two tellers for the Speaker. 

*As to the Territories, see Chap. XLVII., post. 




128 


THE NATIONAL GOVERNMENT 


PART \ 


The electoral franchise on which the House is elected is for 
each State the same as that by which the members of the more 
numerous branch of the State legislature are chosen. Originally 
franchises varied much in different States ; and this was a prin¬ 
cipal reason why the Convention of 1787 left the matter to the 
States to settle : now what is practically manhood (which in 
five States includes womanhood) suffrage prevails in the North¬ 
ern and Western States. A State, however, has a right of 
limiting the suffrage as it pleases, and many States do exclude 
persons convicted of crime, paupers, illiterates, etc. By the 
fifteenth amendment to the Constitution (passed in 1870) “ the 
right of citizens of the United States to vote shall not be denied 
or abridged by any State on account of race, colour, or previous 
condition of servitude,” while by the fourteenth amendment 
(passed in 1868) “the basis of representation in any State is 
reduced in respect of any male citizens excluded from the suf¬ 
frage, save for participation in rebellion or other crimes.” This 
was designed to give the former slave states a motive for keeping 
their suffrage wide, but the fact remains that the franchise by 
which the Federal legislature is chosen may differ, and does in 
some points actually differ in different parts of the Union. 1 

Members are elected for two years, and the election always 
takes place in the even years, 1912, 1914, and so forth. Thus 
the election of every second Congress coincides with that of a 
President; and admirers of the Constitution find in this ar¬ 
rangement another of their favourite “checks,” because while 
it gives the incoming President a Congress presumably, though 
by no means necessarily, of the same political complexion as 
his own, it enables the people within two years to express 
their approval or disapproval of his conduct by sending up 
another House of Representatives which may support or oppose 
the policy he has followed. The House does not in the regular 
course of things meet until a year has elapsed from the time 
when it has been elected, though the President may convoke 
it sooner, i.e. a House elected in November 1914 does not meet 
till December 1915, unless the President summons it in “ex¬ 
traordinary session” some time after March 4, 1915, when the 

1 Rhode Island retained till 1888 a small property qualification for electors, 
and in some States payment of a poll tax is made a condition to the exercise 
of electoral rights. See Chapter XL. on State Legislatures. 

As to the recent restrictions of the suffrage in the States where slavery 
existed down till the War of Secession, see Vol. II. Chapters XCIII.-XCV. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


129 


previous House expires. This summons has been issued fif¬ 
teen times since 1789. It so often brought ill luck to the sum¬ 
moning President that a sort of superstition against it grew. 1 
The question is often mooted whether a new Congress ought 
not by law to meet within six months after its election, for 
there are inconveniences in keeping an elected House unorgan¬ 
ized and Speakerless for a twelvemonth. But the country is 
not so fond of Congress as to desire more of it. It is a singular 
result of the present arrangement that the old House continues 
to sit for nearly four months after the members of the new 
House have been elected, and that a measure may still be passed 
in the expiring Congress, against which the country has vir¬ 
tually pronounced at the general elections already held for its 
successor. In the Fifty-first Congress the House voted more 
than 500 millions of dollars in its appropriation bills after a new 
Congress had been elected, and when therefore it had in strict¬ 
ness no longer any constituents. 

The expense of an election varies greatly from district to 
district. Sometimes, especially in great cities where illegiti¬ 
mate expenditure is more frequent and less detectible than 
in rural districts, it rises to a sum of $10,000 or more: 
sometimes it is trifling. 2 No estimate of the average can be 
formed, because no returns of congressional election expenses 
are required by law; but as a rule a seat costs less than one 
for a county division does in England. 3 A candidate, unless 
very wealthy, is not expected to pay the whole expense out of 
his own pocket, but is aided often by the local contributions 
of his friends, sometimes by a subvention from the election 
funds of the party in the State. All the official expenses, 
such as for clerks, polling booths, etc., are paid by the public. 

1 This ill luck is supposed (says Mr. Blaine in his Twenty Years in Con¬ 
gress) to attach especially to May sessions, which reminds one of the supersti¬ 
tion against May marriages mentioned by John Knox apropos of the marriage 
of Mary Queen of Scots and Darnley. 

* 2 As to bribery, see Vol. II. Chap. LXVII. 

3 A statute of 1910 requires National Committees and national congressional 
campaign committees, and all organizations which in two or more States in¬ 
fluence or attempt to influence the result of an election of representatives in 
Congress, to file with the Clerk of the House an account of all contributions 
received by or promised to it stating the persons contributing and the amounts. 

In England the fixing a maximum, proportioned to the number of electors, 
has greatly reduced the cost of elections. The average expenditure, all kinds 
of lawful expense included, seems, in county constituencies, to be from £1200 to 
£1500, and in boroughs from £500 to £600. 


K 




130 


THE NATIONAL GOVERNMENT 


PART I 


Although bribery is not rare, comparatively few elections are 
impeached, for the difficulty of proof is increased by the circum¬ 
stance that the House, which is the investigating and deciding 
authority, usually does not meet till a year after the election. 
As a member is elected for two years only, and the investiga¬ 
tion would probably drag on during the whole of the first ses¬ 
sion, it is scarcely worth while to dispute the return for the 
sake of turning him out for the second session. 1 In many States, 
drinking places are closed on the election day. 

Among the members of the House there are few young men, 
and still fewer old men. The immense majority are between 
forty and sixty. Lawyers abound, including in that term 
both those who in Great Britain are called barristers or ad¬ 
vocates, and those who are called attorneys, there being in 
America no distinction between these two branches of the 
profession. An analysis of the House in the Fiftieth Congress 
showed that two hundred and three members, or nearly two- 
thirds of the whole number, had been trained or had practised 
as lawyers, and in subsequent Congresses the proportions have 
varied but little. In the Sixtv-first the proportion of lawyers 
was slightly larger, especially among Southern members. Of 
course many of these had practically dropped law as a business 
and given themselves wholly to politics. Next in number come 
the men engaged in manufactures or commerce, in agriculture, 
or banking, or journalism, but no one of these occupations 
counted one-third so many members. 2 Ministers of religion are 
very rare; there were, however, two in the Fifty-second Congress. 
No military or naval officer, and no person in the civil service 
of the United States, can sit. Scarcely any of the great railway 
men go into Congress, a fact of much significance when one 
considers that they are really the most powerful people in the 
country; and of the numerous lawyer members very few are 
leaders of the bar in their respective States. The reason is 
the same in both cases. Residence in Washington makes 
practice at the bar of a great city difficult or impossible, and 
men in lucrative practice would not generally sacrifice their 

1 It was once proposed to transfer to a judicial tribunal the trial of 
election cases, which are now usually decided on party lines. 

2 In the Sixty-first there would appear from the Congressional Directory to 
have been 201 lawyers, 63 persons engaged in manufactures, commerce, or 
finance, 23 agriculturists, 13 journalists, and two physicians. As some mem¬ 
bers do not state their occupations, no complete analysis can be given. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


131 


profession in order to sit in the House, while railway managers 
or financiers are too much engrossed by their business to be 
able to undertake the duties of a member. The absence of 
railway men by no means implies the absence of railway influ¬ 
ence, for it is as easy for a company to influence legislation 
from without Congress as from within. 

Most members, including nearly all western men, have re¬ 
ceived their early education in the common schools, but rather 
more than one-half of the whole number have also graduated 
in a university or college. This does not necessarily mean 
what it would mean in Europe, for some of the smaller colleges 
are no better than English grammar schools and not as good 
as German gymnasia. It is noticeable that in the accounts 
of their career which members prepare for the pages of the 
Congressional Directory, they often dwell upon the fact of their 
graduation, or state that they have “ received an academic 
education.” 1 Less than half have served in the legislature of 
their own State. In the Sixty-second Congress (1911-13) 128 
out of 394 had sat in a State legislature. Not many are wealthy, 
and few are very poor, while hardly any were at the time of their 
election working men. Of course no one could be a working 
man while he sits, for he would have no time to spare for his 
trade, and the salary would more than meet his wants. Nothing 
prevents an artisan from being returned to Congress, but 
there seems little disposition among the working classes to 
send one of themselves; 2 and the nomination system interposes 
obstacles to their standing as candidates of either of the 
great parties, though they sometimes stand as Labour men or 
Socialists. 

A member of the House enjoys the title of Honourable, 
which is given to him not merely within the House (as in Eng¬ 
land), but in the world at large, as for instance in the addresses 
of his letters. As he shares it with members of State senates, 
all the higher officials, both Federal and State, and judges, 
the distinction is not deemed a high one. 

The House has no share in the executive functions of the 
Senate, nothing to do with confirming appointments or approv- 


1 In the Sixty-first Congress 197 had received a collegiate, 78 an 
“academic,” and 73 a “common school” education. 

2 In the Fifty-eighth Congress (1903-5) there were two union labour members, 
described as Independents. 



132 


THE NATIONAL GOVERNMENT 


PART I 


ing treaties. On the other hand, it has the exclusive right of 
initiating revenue bills and of impeaching officials, features 
borrowed, through the State Constitutions, from the English 
House of Commons, and of choosing a President in case there 
should be no absolute majority of presidential electors for any 
one candidate. This very important power it exercised in 
1801 and 1825. 1 

Setting extraordinary sessions aside, every Congress has two 
sessions, distinguished as the First or Long, and the Second or 
Short. The long session begins in the fall of the year after 
the election of a Congress, and continues, with a recess at 
Christmas, till the July or August following. The short session 
begins in the December after the July adjournment, and lasts 
till the 4th of March following. The whole working life of a 
House is thus from ten to twelve months. Bills do not, as in 
the English Parliament, expire at the end of each session; 
they run on from the long session to the short one. All however 
that have not been passed when the fatal 4th March arrives 
perish forthwith, for the session being fixed by statute cannot be 
extended at pleasure. 2 There is consequently a terrible scramble 
to get business pushed through in the last week or two of a Con¬ 
gress. Sometimes the clock of the House is put back in order 
to enable the Speaker who faces it to allow business to be taken 
after the true noon has been passed on the last day. I have 
seen this done openly amid the merriment of the House and the 
galleries. 

The House usually meets at noon, and sits till four or six 
o’clock, though towards the close of a session these hours are 
lengthened. Occasionally when obstruction occurs, or when at 
the very end of a session messages are going backwards and 
forwards between the House, the Senate, and the President, it 
sits all night long. 

The usages and rules of procedure of the House, which differ 
in many respects from those of the Senate, are too numerous to 
be described here. I will advert only to a few points of special 
interest, choosing those which illustrate American political 

1 See above, Chapter V. 

2 Senate bills also expire at the end of a Congress. 

The snow storms that frequently occur at Washington in the beginning of 
March have led to proposals to extend the session till April or May and have 
the President inaugurated then. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


133 


ideas or bring out the points of likeness and unlikeness between 
Congress and the English Parliament. 

An oath or affirmation of fidelity to the Constitution of the 
United States is (as prescribed by the Constitution) taken by 
all members; 1 also by the clerk, the sergeant-at-arms, the 
door-keeper, and the post-master. 

The sergeant-at-arms is the treasurer of the House, and pays 
to each member his salary and mileage. He has the custody 
of the mace, and the duty of keeping order, which in extreme 
cases he performs by carrying the mace into a throng of 
disorderly members. This symbol of authority, which (as in 
the House of Commons) is moved from its place when the 
House goes into committee, consists of the Roman fasces , in 
ebony, bound with silver bands in the middle and at the ends, 
each rod ending in a spear head, at the other end a globe of 
silver, and on the globe a silver eagle ready for flight. English 
precedent suggests the mace, but as it could not be surmounted 
by a crown, Rome has prescribed its design. 

The proceedings each day begin with prayers, which are con¬ 
ducted by a chaplain who is appointed by the House, not (as 
in England) by the Speaker, and who may, of course, be selected 
from any religious denomination. Lots are drawn for seats 
at the beginning of the session, each member selecting the place 
he pleases according as his turn arrives. Although the Demo¬ 
crats are to the Speaker’s right hand, members cannot, owing to 
the arrangement of the chairs, sit in masses palpably divided 
according to party, a circumstance which deprives invective of 
much of its dramatic effect. One cannot, as in England, point 
the finger of scorn at “hon. gentlemen opposite.” Every mem¬ 
ber is required to remain uncovered in the House. 

A member addresses the Speaker and the Speaker only, and 
refers to another member not by name but as the “ gentleman 
from Pennsylvania,” or as the case may be, without any par- 

1 The oath is administered by the Speaker, and in the form following : “I 
do solemnly swear (or affirm) that I will support the Constitution of the United 
States against all enemies, foreign and domestic ; that I will bear true faith and 
allegiance to the same ; that I take this obligation freely without any mental 
reservation or purpose of evasion, and that I will well and faithfully discharge 
the duties of the office on which I am about to enter, so help me God.” “Alle¬ 
giance” to a legal instrument would have seemed an odd expression to those 
ages in which the notion of allegiance arose ; yet it fairly conveys the idea that 
obedience is due to the will of the people, which has taken tangible and per¬ 
manent shape in the document they have enacted. 





134 


THE NATIONAL GOVERNMENT 


PART I 


ticular indication of the district which the person referred to 
represents. As there are thirty-six gentlemen from Penn¬ 
sylvania, and the descriptives used in the English House of 
Commons (learned, gallant, right honourable) are not in use, 
facilities for distinguishing the member intended are not per¬ 
fect. A member usually speaks from his seat, but may speak 
from the clerk’s desk or from a spot close to the Speaker’s 
chair. A rule (often disregarded) forbids any one to pass be¬ 
tween the Speaker and the member speaking, a curious bit of 
adherence to English usage. 

Divisions were originally (rule of 17th April 1789) taken by going 
to the right and left of the chair, according to the old practice 
of the English House of Commons. 1 This having been found 
inconvenient, a resolution of 9th June 1789 established the 
present practice, whereby members rise in their seats and are 
counted in the first instance by the Speaker, but if he is in 
doubt, or if a count be required by one-fifth of those present 
(which cannot be less than one-tenth of the whole House), 
then by two tellers named by the Speaker, between whom, as 
they stand in the middle gangway, members pass. When a 
call of yeas and nays is so demanded, the clerk calls the full 
roll of the House and each member answers aye or no to his 
name or says “ no vote” When the whole roll has been called, 
it is called over a second time to let those vote who have not 
voted in the first call. Members may now change their votes. 
Those who have entered the House after their names were 
passed on the second call cannot vote, but often take the 
opportunity of rising to say that they would, if then present 
in the House, have voted for (or against) the motion. All 
this is set forth in the Congressional Record, which also contains 
a list of the members not voting and of the pairs. 

A process which consumes so much time, for it may take more 
than an hour to call through the names, is an obvious and 
effective engine of obstruction. It is frequently so used, for it can 
be demanded not only on questions of substance, but on motions 
to adjourn. This is a rule which the House cannot alter, for 
it rests on an express provision of the Constitution, Art. i. § 5. 

1 It was not until 1836 that the present system of recording the names of 
members who vote by making them pass through lobbies was introduced at 
Westminster — a significant result of the Reform Act of 1832. Till then one 
party had remained in the House while the other retired into the lobby, and 
only the numbers were recorded. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


135 


No one may speak more than once to the same question, 
unless he be the mover of the motion pending, in which case 
he is permitted to reply after every member choosing to speak 
has spoken. This rule is however frequently broken. 

Speeches are limited to one hour, subject to a power to 
extend this time by unanimous consent, and may, in committee 
of the whole House, be limited to five minutes. So far as I 
could learn, this hour rule works very well, and does not tend 
to bring speeches up to that length as a regular thing. A mem¬ 
ber is at liberty to give part of his time to other members, and 
this is in practice constantly done. The member speaking will 
say : “I yield the floor to the gentleman from Ohio for five min¬ 
utes,’ ’ and so on. Thus a member who has once secured the 
floor has a large control of the debate. 

The great remedy against prolix or obstructive debate is the 
so-called previous question, which is moved in the form, “ Shall 
the main question be now put?” and when ordered closes forth¬ 
with all debate, and brings the House to a direct vote on that 
main question. 1 On the motion for the putting of the main 
question no debate is allowed ; but it does not destroy the right 
of the member “reporting the measure under consideration” 
from a committee, to wind up the discussion by his reply. This 
closure of the debate may be moved by any member without the 
need of leave from the Speaker, and requires only a bare majority 
of those present. When directed by the House to be applied in 
committee, for it cannot be moved after the House has gone 
into committee, it has the effect of securing five minutes to the 
mover of any amendment, and five minutes to the member who 
first “obtains the floor” (gets the chance of speaking) in opposi¬ 
tion to it, permitting no one else to speak. A member in pro¬ 
posing a resolution or motion usually asks at the same time for 
the previous question upon it, so as to prevent it from being 
talked out. 

- Closure by previous question, first established in 1811, is 
in daily use, and is considered so essential to the progress of 
business that I never found any member or official willing 
to dispense with it. Even the senators, who object to its 
introduction into their own much smaller chamber, agree that 
it must exist in a large body like the House. That it is not 
much abused is attributed to the fear of displeasing the people, 


i See Rule XVII. 




136 


THE NATIONAL GOVERNMENT 


PART I 


and to the sentiment within the House itself in favour of full 
and fair discussion, which sometimes induces the majority to 
refuse the previous question when demanded by one of their 
own party, or on behalf of a motion which they are as a whole 
supporting. “No one,” I was assured, “who is bona fide dis¬ 
cussing a subject in a sensible way, would be stopped by the 
application of the previous question. On the other hand we 
should never get even urgent bills through without it.” 

Notwithstanding this powerful engine for expediting busi¬ 
ness, obstruction, or, as it is called in America, filibustering, is by 
no means unknown. It is usually practised by making repeated 
motions for the adjournment of a debate, or for “taking a recess” 
(suspending the sitting), or for calling the yeas and nays. Be¬ 
tween one such motion and another some business must intervene, 
but as the making of a speech is “business,” there is no difficulty 
in complying with this requirement. No speaking is permitted 
on these obstructive motions, yet by them time may be wasted 
for many continuous hours, and if the obstructing minority is 
a strong one, it generally succeeds, if not in defeating a measure, 
yet in extorting a compromise. It must be remembered that 
owing to the provision of the Constitution above mentioned, the 
House is in this matter not sovereign even over its own pro¬ 
cedure. That rules are not adopted, as they might be, which 
would go further to extinguish filibustering, is due partly to 
this provision, partly to the notion that it is prudent to leave 
some means open by which a minority can make itself disagree¬ 
able, ancT\p the belief that adequate checks exist on any gross 
abuse of such means. 1 These checks are two. One is the fact 
that filibustering usually fails unless conducted by nearly the 
whole of the party which happens to be in a minority, and that 
so large a section of the House will not be at the trouble of join¬ 
ing in it unless upon some really serious question. Some years 
ago, seventeen or eighteen members tried to obstruct system¬ 
atically a measure they objected to, but their number proved 
insufficient, and the attempt failed. But at an earlier date, 
during the Reconstruction troubles which followed the war, 
the opposition of the solid Democratic party, then in a minority, 
succeeded in defeating a bill for placing five of the southern 

1 In 1890 a rule was passed declaring that “no dilatory motion shall be enter¬ 
tained by the Speaker.” This of course leaves it to him to decide what is 
dilatory. (Rule XVI. par. 10.) 



chap, xiii THE HOUSE OF REPRESENTATIVES 


137 


States under military government. The other check is found 
in the fear of popular disapproval. If the nation sees public 
business stopped and necessary legislation delayed by factious 
obstruction, it will visit its displeasure both upon the filibuster¬ 
ing leaders individually, and on the whole of the party com¬ 
promised. However hot party spirit may be, there is always 
a margin of moderate men in both parties whom the unjusti¬ 
fiable use of legally permissible modes of opposition will alienate. 
Since such men can make themselves felt at the polls when the 
next election arrives, respect for their opinion cools the passion 
of congressional politicians. Thus the general feeling is that as 
the power of filibustering is in extreme cases a safeguard against 
abuses of the system of closure by “previous question,” so the 
good sense of the community is in its turn a safeguard against 
abuses of the opportunities which the rules still leave open. One 
ex-Speaker, who had had large experience in leading both a 
majority and a minority of the House, observed to me that he 
thought the rules, taken all in all, as near perfection as any rules 
could be. This savours of official optimism. We all know the 
attachment which those who have grown old in working a system 
show to its faults as well as to its merits. Still, true is it that 
congressmen complain no more of the procedure under which 
they live, and which seems to an English observer tyrannical, 
than do members of the English House of Commons of the 
less rigid methods of their own ancient and famous body. 1 
I know no better instance of the self-control and good humour 
of Americans than the way in which the minority in the House 
generally submit to the despotism of the majority, consoling 
themselves with the reflection that it is all according to the rules 
of the game, and that their turn will come in due course. To 
use the power of closing debate as stringently at Westminster 
as it is used at Washington would revolutionize the life of the 
House of Commons. 1 But the House of Representatives is 
an assembly of a very different nature. Like the House of 
Commons it is a legislating, if hardly to be deemed a gov¬ 
erning, body. But it is not a debating body. It rules through 
and by its committees, in which discussion is unchecked by any 
closing power • and the whole House does little more than 
register by its votes the conclusions which the committees 

1 The Rules of Procedure in the House of Commons have become much 
stricter now (1914) than they were in 1888 when the above was first written. 



138 


THE NATIONAL GOVERNMENT 


PART I 


submit. One subject alone, the subject of revenue, that is to 
say, taxation and appropriation, receives genuine discussion by 
the House at large. And although the power of limiting debate 
is often applied to expedite such business, it is seldom applied 
till opportunity has been given for the expression of all relevant 
views. 

The rules regarding the procedure in committee of the whole 
House are in the main similar to those of the British House of 
Commons; but the chairman of such a committee is not (as 
usually in England) a permanent chairman of Ways and Means, 
but a person nominated by the Speaker on each occasion. 
A rule, not duly observed, forbids any member to speak twice 
to any question, until every member desiring to speak shall 
have spoken. 1 

The House has a power of going into secret session whenever 
confidential communications are received from the President, 
or a member informs it that he has communications of a secret 
nature to make. But this power, though employed in early days, 
is now in disuse. Every word spoken is reported by official 
stenographers and published in the Congressional Record, and the 
huge galleries are never cleared. 

The number of bills brought into the House every year is 
very large, and has steadily increased. In the Thirty-seventh 
Congress (1861-63) the total number of bills introduced was 
1026, viz. : — 613 House bills, and 433 Senate bills. In 
the Fifty-first Congress (1889-91) the number had risen fur¬ 
ther, to 19,646 (including joint resolutions), of which 14,328 
were introduced in the House, 5318 in the Senate. 2 In the 
Sixty-second there had been a further rise, for the bills and joint 
resolutions introduced in the House reached about 29,000, and 
those in the Senate approached 9000. In the British House of 
Commons the number of public bills introduced was, in the ses¬ 
sion of 1892, 335 (20 of which had come from the Lords), besides 
80 provisional order bills. In 1908 the total number of bills of 
all kinds introduced was 482, of which 297 were public bills, 56 
provisional order bills, and 127 private bills. America is, 
of course, a far larger country, and more than twice as 


1 Proceedings in Committee of the Whole may be expedited by limiting (by 
a vote of the House) discussion in Committee to a certain fixed period. 

2 Of these, 2201 passed both Houses, and 2171 were approved by the Presi¬ 
dent. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


139 


populous, but the legislative competence of Congress is 
incomparably smaller than that of the British Parliament, 
seeing that the chief part of the field both of public bill and 
private bill legislation belongs in America to the several States. 
By far the larger number of bills in Congress are what would 
be called in England “private” or “local and personal” bills, 
i.e. they establish no general rule of law but are directed to par¬ 
ticular cases. Such are the numerous bills for satisfying persons 
with claims against the Federal Government, and for giving 
or restoring pensions foy individuals alleged to have served in 
the Northern armies during the War of Secession. It is only 
to a very small extent that bills can attempt to deal with ordinary 
private law, since most of that topic belongs to State legislation. 
The proportion of bills that pass to bills that fail is a very small 
one, not one-thirtieth. 1 As in England so even more in America, 
bills are lost less by direct rejection than by failing to reach 
their third reading, a mode of extinction which the good-nature 
of the House, or the unwillingness of its members to administer 
snubs' to one another, would prefer to direct rejection, even 
were not the want of time a sufficient excuse to the committees 
for failing to report them. One is told in Washington that few 
bills are brought in with a view to being passed. They are 
presented in order to gratify some particular persons or places, 
and it is well understood in the House that they'must not be 
taken seriously. Sometimes a less pardonable motive exists. 
The great commercial corporations, and especially the railroad 
companies, are often through their land grants and otherwise 
brought into relations with the Federal Government. Bills are 
presented in Congress which purport to withdraw some of the 
privileges of these companies, or to establish or favour rival 
enterprises, but whose real object is to levy blackmail on these 
wealthy bodies, since it is often cheaper for a company to buy 
off its enemy than to defeat him either by the illegitimate influence 
of the lobby, or by the strength of its case in open combat. 
Several great corporations have thus to maintain a permanent 
staff at Washington for the sake of resisting legislative attacks 

1 In the British Parliamentary Session of 1908, 74 public bills (out of 297 
introduced) became law, of which 21 were private members bills; 55 provisional 
order bills were also passed. The number of public bills introduced has increased 
in England since 1867, though not so rapidly as in America, but private (i.e., 
unofficial) members have great difficulty in passing their bills, recent changes in 
parliamentary procedure having reduced their chances. 



140 


THE NATIONAL GOVERNMENT 


PART I 


upon them, some merely extortionate, some intended to win 
local popularity. 

The title and attributions of the Speaker of the House are 
taken from his famous English original. But the character of 
the office has greatly altered from that original. The note of 
the Speaker of the British House of Commons is his impartiality. 
He has indeed been chosen by a party, because a majority 
means in England a party. But on his way from his place on 
the benches to the Chair he is expected to shake off and leave 
behind all party ties and sympathies. Once invested with the 
wig and gown of office he has no longer any political opinions, 
and must administer exactly the same treatment to his political 
friends and to those who have been hitherto his opponents, 
to the oldest or most powerful minister and to the youngest 
or least popular member. His duties are limited to the enforce¬ 
ment of the rules and generally to the maintenance of order 
and decorum in debate, including the selection, when several 
members rise at the same moment, of the one who is to carry 
on the discussion. These are duties of great importance, and 
his position one of great dignity, but neither the duties nor the 
position imply political power. It makes little difference to any 
English party in Parliament whether the occupant of the chair 
has come from their own or from the hostile ranks. The Speaker 
can lower or raise the tone and efficiency of the House as a whole 
by the way he presides over it: but a custom as strong as law 
forbids him to render help to his own side even by private advice. 
Whatever information as to parliamentary law he may feel free 
to give must be equally at the disposal of every member. 

In America the Speaker has great political power, and is 
permitted, nay expected, to use it in the interests of his party. 
At one time he ruled and led almost as Rouher led and ruled the 
French Chamber under Louis Napoleon. In calling upon mem¬ 
bers to speak he prefers those of his own side. He decides in their 
favour such points of order as are not distinctly covered by the 
rules. His authority over the arrangement of business is so 
large that he can frequently advance or postpone particular 
bills or motions in a way which determines their fate. One 
much respected Speaker once went the length of intimating that 
he would not allow a certain bill, to which he strongly objected, 
to be so much as presented to the House; and this he could do 
by refusing to recognize the member desiring to present it. 



chap, xiii THE HOUSE OF REPRESENTATIVES 


141 


Although the Speaker seldom delivers a speech in the House, he 
may and does advise the other leaders of his party privately; 
and when they “go into caucus” (i.e. hold a party meeting to 
determine their action on some pending question) he is present 
and gives counsel. He is often the most eminent member of the 
party who has a seat in the House, and is really, so far as the 
confidential direction of its policy goes, almost its leader. His 
most important privilege is, however, the nomination of the 
numerous standing committees already referred to. In the first 
Congress (April 1789) the House tried the plan of appointing 
its committees by ballot; but this worked so ill that in January 
1790 the following rule was passed :— “All committees shall be 
appointed by the Speaker unless otherwise specially directed by 
the House.” This rule has been re-adopted by each successive 
Congress since then. 1 Not only does he, at the beginning of each 
Congress, select all the members of each of these committees, 
he even chooses the chairman of each, and thereby vests the 
direction of its business in hands approved by himself. 2 The 
chairman is of course always selected from the party which com¬ 
mands the House, and the committee is so composed as to give 
that party a majority. Since legislation, and so much of the 
control of current administration as the House has been able to 
bring within its grasp, belong to these committees, their com¬ 
position practically determines the action of the House on all 
questions of moment, and as the chairmanships of the more 
important committees are the posts of most influence, the disposal 
of them is a tremendous piece of patronage by which a Speaker 
can attract support to himself and his own section of the party, 
reward his friends, give politicians the opportunity of rising 
to distinction or practically extinguish their congressional career. 
The Speaker is, of course, far from free in disposing of these places. 
He has been obliged to secure his own election to the chair by 
promises to leading members and their friends; and while 
redeeming such promises, he must also regard the wishes of 

1 In England select committees on public matters are appointed by the 
House, i.e. practically by the “whips” of the several parties, though some¬ 
times a discussion in the House leads to the addition of other members. Hybrid 
committees are appointed partly by the House and partly by the committee of 
Selection. Private bill committees are appointed by the committee of Selec¬ 
tion. This committee is a small body of the older and more experienced mem¬ 
bers, intended to represent fairly all parties and sections of opinion. 

2 In 1910 an alteration in the rules was made which reduced the power of the 
Speaker, vesting some of it in a Committee. 



142 


THE NATIONAL GOVERNMENT 


PART I 


important groups of men or types of opinion, must compliment 
particular States by giving a place on good committees to their 
prominent representatives, must avoid nominations which could 
alarm particular interests. These conditions surround the ex¬ 
ercise of his power with trouble and anxiety. Yet after all it 
is power, power which in the hands of a capable and ambitious 
man was from 1890 to 1910 so far-reaching that it was then no 
exaggeration to call him the second political figure in the United 
States, with an influence upon the fortunes of men and the course 
of domestic events superior, in ordinary times and in capable 
hands, to the President’s, although shorter in its duration and 
less patent to the world. 1 His authority has now been reduced, 
but it is still great, and may regain its former extension. 

The choice of a Speaker is therefore a political event of much 
significance; and the whole policy of a Congress sometimes turns 
upon whether the man selected represents one or another of 
two divergent tendencies in the majority. The distribution of 
members among the committees, which used to be left to him, 
but is now in the hands of a Committee of the majority, is a 
critical point in the history of a Congress, and one which is 
watched with keen interest. As the chairmanships of the chief 
committees are posts of great significance forming a sort of 
second set of ministerial office, and as they may be compared 
to the cabinet offices of Europe, so the Speaker is himself a great 
party leader as well as the president of a deliberative assembly. 

Although expected to serve his party in all possible directions, 
he must not resort to all possible means. Both in the conduct 
of debate and in the formation of committees a certain measure 
of fairness to opponents is required from him. He must not 

1 “The appointment of the committees implies the distribution of work to 
every member. It means the determination of the cast business shall take. 
It decides for or against all large matters of policy, or may so decide ; for while 
Speakers will differ from each other greatly in force of character and in the 
wish to give positive direction to affairs, the weakest man cannot escape from 
the necessity of arranging the appointments with a view to the probable char¬ 
acter of measures which will be agitated. This, however, is far from the meas¬ 
ure of the Speaker’s power. All rules are more or less flexible. The current 
of precedents is never consistent or uniform. The bias of the Speaker at a 
critical moment will turn the scale. Mr. Randall as Speaker determined the 
assent of the House to the action of the Electoral Commission [of 1877]. Had 
he wished for a revolutionary attempt to prevent the announcement of Hayes’s 
election, no one who has had experience in Congress, at least, will doubt that 
he could have forced the collision.” — From an article in the New York Nation 
of April 4, 1878, by an experienced member of Congress. 




chap, xiii THE HOUSE OF REPRESENTATIVES 


143 


palpably wrest the rules of the House to their disadvantage, 
though he may decide all doubtful points against them. He 
must give them a reasonable share of “the floor” (i.e. of debate). 
He must concede to them proper representation on committees. 

The dignity of the Speaker's office is high. He receives 
$12,000 a year. In rank he stands next after the Vice-President 
and on a level with the justices of the Supreme Court. Wash¬ 
ington society was once agitated by a claim of his wife to take 
precedence over the wives of these judges, a claim so ominous 
in a democratic country that efforts were made to have it 
adjusted without a formal decision. 



CHAPTER XIV 


THE HOUSE AT WORK 

An Englishman expects to find his House of Commons 
reproduced in the House of Representatives. He has the 
more reason for this notion because he knows that the latter 
was modelled on the former, has borrowed many of its rules 
and technical expressions, and regards the procedure of the 
English chamber as a storehouse of precedents for its own 
guidance. 1 The notion is delusive. Resemblances of course 
there are. But an English parliamentarian who observes the 
American House at work is more impressed by the points of 
contrast than by those of similarity. The life and spirit of 
the two bodies are wholly different. 

The room in which the House meets is in the south wing of 
the Capitol, the Senate and the Supreme Court being lodged 
in the north wing. It is more than thrice as large as the 
English House of Commons, with a floor about equal in area 
to that of Westminster Hall, 139 feet long by 93 feet wide 
and 36 feet high. Light is admitted through the ceiling. There 
are on all sides deep galleries running backwards over the 
lobbies, and capable of holding two thousand five hundred 
persons. The proportions are so good that it is not till you 
observe how small a man looks at the farther end, and how faint 
ordinary voices sound, that you realize its vast size. The seats 
are arranged in curved concentric rows looking towards the 
Speaker, whose handsome marble chair is placed on a raised 

1 Both the Senate and the House of Representatives have recognized Jeffer¬ 
son’s Manual of Parliamentary Practice as governing the House when none 
of its own rules (or of the joint rules of Congress) are applicable. This manual, 
prepared by President Jefferson, is based on English precedents. 

A recent (1909) edition of this manual with the Rules of the House appended 
has been enriched by the valuable notes of Mr. Asher C. Hinds, then clerk at the 
Speaker’s table. For a favourable view of the Rules of the House as they ap¬ 
pear to those who are conversant with that body, reference may be made to 
articles on the subject in the American Review of Reviews for April, 1909, and 
in the American Political Science Review for May, 1909. 

144 


CHAP. XIV 


THE HOUSE AT WORK 


145 


marble platform projecting slightly forward into the room, 
the clerks and the mace below in front of him, in front of the 
clerks the official stenographers, to the right the seat of the 
sergeant-at-arms. Each member has a revolving arm-chair, and 
had till 1913 a roomy desk in front of it, where he wrote and kept 
his papers. Behind these chairs runs a railing, and behind the 
railing is an open space into which some classes of strangers 
may be brought, where sofas stand against the wall, and where 
smoking is occasionally practised, even by strangers, though 
the rules forbid it. 

When you enter, your first impression is of noise and tur¬ 
moil, a noise like that of short sharp waves in a Highland loch, 
fretting under a squall against a rocky shore. The scratching 
of pens, the clapping of hands to call the pages, keen little boys 
who race along the gangways, the pattering of many feet, the 
hum of talking on the floor and in the galleries, make up a din 
over which the Speaker with the sharp taps of his hammer, 
or the orators straining shrill throats, find it hard to make 
themselves audible. Nor is it only the noise that gives the 
impression of disorder. Often three or four members are on 
their feet at once, each shouting to catch the Speaker’s attention. 
Others, tired of sitting still, rise to stretch themselves, while 
the Western visitor, long, lank, and imperturbable, leans 
his arms on the railing, chewing his cigar, and surveys the 
scene with little reverence. Less favourable conditions for 
oratory cannot be imagined, and one is not surprised to be 
told that debate was more animated and practical in the 
much smaller room which the House formerly occupied. 

Not only is the present room so big that only a powerful 
and well-trained voice can fill it, but the large chairs make a 
speaker feel as if he were addressing furniture rather than 
men, while of the members few seem to listen to the speeches. 
It is true that they sit in the House instead of running fre¬ 
quently out into the lobbies, but they are more occupied in 
talking or writing, or reading newspapers, than in attending 
to the debate. To attend is not easy, for only a shrill voice 
can overcome the murmurous roar; and one sometimes finds 
the newspapers in describing an unusually effective speech, 
observe that “Mr. So-and-So’s speech drew listeners about 
him from all parts of the House.” They could not hear him 
where they sat, so they left their places to crowd in the gang- 




146 


THE NATIONAL GOVERNMENT 


PART r 


ways near him. “Speaking in the House,” said an American 
writer, “is like trying to address the people in the Broadway 
omnibuses from the kerbstone in front of the Astor House. 
. . . Men of fine intellect and of good ordinary eJocution have 
exclaimed in despair that in the House of Representatives the 
mere physical effort to be heard uses up all the powers, so that 
intellectual action becomes impossible. The natural refuge is 
in written speeches or in habitual silence, which one dreads 
more and more to break.” 

It is hard to talk calm good sense at the top of your voice, 
hard to unfold a complicated measure. A speaker’s vocal 
organs react upon his manner, and his manner on the substance 
of his speech. It is also hard to thunder at an unscrupulous 
majority or a factious minority when they do not sit opposite 
to you, but beside you, and perhaps too much occupied with 
their papers to turn round and listen to you. The Americans 
think this an advantage, because it prevents scenes of disorder. 
They may be right; but what order gains oratory loses. The 
desks encouraged inattention by enabling men to write their 
letters; but though nearly everybody agreed that they would 
be better away, it was not till 1913 that they were removed. 
At the same time benches were substituted for the comfortable 
swinging chairs which invited members to loll at ease or doze 
comfortably during dull debates. The members are thus 
brought closer together, but the size of the hall was not reduced. 
So too the huge galleries add to the area the voice has to fill; 
but the public like them, and might resent a removal to a 
smaller room. It is surprising to see how well filled the galleries 
sometimes remain through a succession of dull speeches. The 
smoking shocks an Englishman, but not more than the English 
practice of wearing hats in both Houses of Parliament shocks 
an American. Interruptions, and interjected remarks, are not 
more frequent — when I have been present they seemed to be 
much less frequent — than in the House of Commons. Ap¬ 
proval is expressed more charily, as is usually the case in 
America. Instead of “Hear, hear,” there is a clapping of hands 
and hitting of desks. Applause is sometimes given from the 
galleries; and occasionally at the end of a session both the 
members below and the strangers in the galleries above have 
been known to join in singing some popular ditty. I have heard 
a whistling solo extremely well given. 



CHAP. XIV 


THE HOUSE AT WORK 


147 


There is little good speaking. I do not mean merely that 
fine oratory, oratory which presents valuable thoughts in elo¬ 
quent words, is rare, for it is rare in all assemblies. But in the 
House of Representatives a set speech upon any subject of 
importance tends to become not an exposition or an argument 
but a piece of elaborate and high-flown declamation. Its au¬ 
thor is often wise enough to send direct to the reporters what 
he has written out, having read aloud a small part of it in the 
House. When it has been printed in extenso in the Congres¬ 
sional Record (leave to get this done being readily obtained) 
he has copies struck off and distributes them among his con¬ 
stituents. Thus everybody is pleased and time is saved. 1 

That there is not much good business debating, by which I 
mean a succession of comparatively short speeches addressed 
to a practical question, and hammering it out by the collision 
of mind with mind, arises not from any want of ability among 
the members, but from the unfavourable conditions under which 
the House acts. Most of the practical work is done in the 
standing committees, while much of the House’s time is con¬ 
sumed in pointless discussions, where member after member 
delivers himself upon large questions, not likely to be brought 
to a definite issue. Many of the speeches thus called forth 
have a value as repertories of facts, but the debate as a whole is 
unprofitable and languid. On the other hand the five-minute 
debates which take place, when the House imposes that limit of 
time, in Committee of the Whole on the consideration of a bill 
reported from a standing committee, are often lively, pointed, 
and effective. The topics which excite most interest and are 
best discussed are those of taxation and the appropriation of 
money, more particularly to public works, the improvement of 
rivers and harbours, erection of Federal buildings, and so forth. 
This kind of business is indeed to most of its members the chief 
interest of Congress, the business which evokes the finest skill of 
a tactician and offers the severest temptations to a frail conscience. 
As a theatre or school either of political eloquence or political 
wisdom, the House has been inferior not only to the Senate 
but to most European assemblies. Nor does it enjoy much con¬ 
sideration at home. Its debates are very shortly reported in 


1 1 was told that formerly speeches might be printed in the Record as a matter 
of course, but that, a member having used this privilege to print and circulate 
a poem, the right was restrained. 




148 


THE NATIONAL GOVERNMENT 


PART 1 


the Washington papers as well as in those of Philadelphia and 
New York. They are not widely read except in very exciting 
times, and do little to instruct or influence public opinion. 

This is of course only one part of a legislature’s functions. 
An assembly may despatch its business successfully and yet 
shine with few lights of genius. But the legislation on public 
matters which the House turns out is scanty in quantity and 
generally mediocre in quality. What is more, the House 
tends to avoid all really grave and pressing questions, skirmish¬ 
ing round them, but seldom meeting them in the face or reach¬ 
ing a decision which marks an advance. If one makes this 
observation to an American, he replies that at this moment 
some of the gravest questions do not lie within the competence 
of Congress, and that in his country representatives must not 
attempt to move faster than their constituents. This latter 
remark is eminently true; it expresses a feeling which has 
gone so far that Congress conceives its duty to be to follow and 
not to seek to lead public opinion. The harm actually suffered 
so far is not grave. But the European observer cannot escape 
the impression that Congress might fail to grapple with a 
serious public danger, and is at present hardly equal to the 
duty of guiding and instructing the political intelligence of the 
nation. 

In all assemblies one must expect abundance of unreality and 
pretence, many speeches obviously addressed to the gallery, 
many bills meant to be circulated but not to be seriously pro¬ 
ceeded with. However, the House seems to indulge itself more 
freely in this direction than any other chamber of equal rank. 
Its galleries are large, holding 2500 persons. But it talks and 
votes, I will not say to the galleries, for the galleries can seldom 
hear it, but as if every section of American opinion was present 
in the room. It adopts unanimously resolutions which perhaps 
no single member in his heart approves of, but which no one 
cares to object to, because it seems not worth while to do so. 
This habit sometimes exposes it to a snub, such as that admin¬ 
istered by Bismarck in the matter of the resolution of condo¬ 
lence with the German Parliament on the death of Lasker, a 
resolution harmless indeed, but so superfluous as to be almost 
obtrusive. A practice unknown to Europeans is of course mis¬ 
understood by them, and sometimes provokes resentment. Bills 
are frequently brought into the House proposing to effect 



CHAP. XIV 


THE HOUSE AT WORK 


149 


impossible objects by absurd means, which astonish a visitor, 
and may even cause disquiet in other countries, while few 
people in America notice them, and no one thinks it worth 
while to expose their emptiness. American statesmen keep 
their pockets full of the loose cash of empty compliments and 
pompous phrases, and become so accustomed to scatter it among 
the crowd that they are surprised when a complimentary reso¬ 
lution or electioneering bill, intended to humour some section 
of opinion at home, is taken seriously abroad. The House is 
particularly apt to err in this way, because having no responsi¬ 
bility in foreign policy, and little sense of its own dignity, it 
applies to international affairs the habits of election meetings. 

[Watching the House at work, and talking to the members 
in the lobbies, an Englishman naturally asks himself how the 
intellectual quality of the body compares with that of the 
House of Commons. His American friends have prepared 
him to expect a marked inferiority. They are fond of run¬ 
ning down congressmen. The cultivated New Englanders and 
New Yorkers do this out of intellectual fastidiousness, and in 
order to support the role which they unconsciously fall into 
when talking to Europeans. The rougher Western men do it 
because they would not have congressmen either seem or be 
better in any way than themselves, since that would be opposed 
to republican equality. A stranger who has taken literally all 
he hears is therefore surprised to find so much character, 
shrewdness, and keen though limited intelligence among the 
representatives. Their average business capacity is not below 
that of members of the House of Commons. True it is that 
great lights, such as usually adorn the British chamber, are 
absent: true also that there are fewer men who have received 
a high education which has developed their tastes and enlarged 
their horizons. The want of such men seriously depresses the 
average. It is raised, however, by the almost total absence of 
two classes hitherto well represented in the British Parlia¬ 
ment, the rich, dull parvenu, who has bought himself into pub¬ 
lic life, and the perhaps equally unlettered young sporting or 
fashionable man who, neither knowing nor caring anything 
about politics, has come in for a county or (before 1885) a 
small borough, on the strength of his family estates. Few 
congressmen sink to so low an intellectual level as these two 
sets of persons, for congressmen have almost certainly made 



150 


THE NATIONAL GOVERNMENT 


PART I 


their way by energy and smartiiess, picking up a knowledge of 
men and things “ all the time.”' In respect of width of view, 
of capacity for penetrating thought on political problems, 
representatives are scarcely above the class from which they 
came, that of second-rate lawyers or farmers, less often mer¬ 
chants or manufacturers. They do not pretend to be statesmen 
in the European sense of the word, for their careers, which have 
made them smart and active, have given them little oppor¬ 
tunity for acquiring such capacities. As regards manners 
they are not polished, because they have not lived among 
polished people; yet neither are they rude, for to get on in 
American politics one must be civil and pleasant. The stand¬ 
ard of parliamentary language, and o'f courtesy generally, 
has tended to rise during the last few decades; and scenes 
of violence and confusion such as occasionally convulse the 
French chamber, and were common in Washington before the 
JWar of Secession, are now rare. 

^On the whole, the most striking difference between the 
House of Representatives and European popular assemblies is 
its greater homogeneity. The type is marked ; the individuals 
vary little from the type. In Europe all sorts of persons are 
sucked into the vortex of the legislature, — nobles and landown¬ 
ers, lawyers, physicians, business men, artisans, journalists, 
men of learning, men of science. In America five representa¬ 
tives out of six are politicians pure and simple, members of a 
class as well defined as any one of the above-mentioned Euro¬ 
pean classes. The American people, though it is composed of 
immigrants from every country and occupies a whole conti¬ 
nent, tends to become more uniform than most of the great 
European peoples; and this characteristic is palpable in its 



Mature. 


Uneasy lies the head of an ambitious congressman, 1 for the 
chances are almost even that he will lose his seat at the next 
election. It was observed in 1788 that half of the members of 
each successive State legislature were new members, and this 
average was long maintained in the Federal legislature, rather 
less than half keeping their seats from one Congress to the next. 

1 The term “Congressman” is commonly used to describe a member of the 
House of Representatives, though of course it ought to include senators also. 
So in England “Member of Parliament” means member of the House of Com¬ 
mons, though it covers all persons who have seats in the House of Lords. 



CHAP. XIV 


THE HOUSE AT WORK 


151 


In recent years re-election has grown more frequent, and in the 
Sixty-first Congress (1909-11), only 74 members out of 391 
had not served before. Sixteen members had served during 
nine or more previous terms, i.e. for 18 years or more. In 
England the proportion of members re-elected from Parliament 
to Parliament has been higher. Any one can see how much 
influence this constant change in the composition of the Ameri¬ 
can House must have had upon its legislative efficiency. 

I have kept to the last the feature of the House which Euro¬ 
peans find the strangest. 

It has parties, but they are headless. There is neither 
Government nor Opposition. There can hardly be said to be 
leaders, and till 1900 there were no whips. 1 No person holding 
any Federal office or receiving any Federal salary can be a 
member of it. That the majority may be and often is opposed 
to the President and his cabinet, does not strike Americans as 
odd, because they proceed on the theory that the legislative 
ought to be distinct from the executive authority. Since no 
minister sits, there is no official representative of the Adminis¬ 
tration. Neither is there any permanent unofficial representa¬ 
tive. And as there are no members whose opinions expressed 
in debate are followed, so there are none whose duty it is to be 
always on the spot to look after members to vote, secure a 
quorum, and tell their friends which way the bulk of the party 
is going. 

So far as the majority has a chief, that chief is the Speaker, 
often chosen by them as their ablest and most influential man; 
but as the Speaker seldom joins in debate (though he may 
do so by leaving the chair, having put some one else in it), 
the chairman of the most important committee, that of Ways 
and Means, enjoys a sort of eminence, and comes nearer than 
any one else to the position of leader of the House. 2 But his 
authority does not always enable him to secure co-operation 
for debate among the best speakers of his party, putting up 
now one now another, after the fashion of an English prime 
minister, and thereby guiding the general course of the dis¬ 
cussion. 

The minority need not formally choose a chief, nor is there 

1 See as to Whips, Chapter XIX., post. 

2 The Chairman of the Committee on Appropriations has perhaps as much 
real power. 



152 


THE NATIONAL GOVERNMENT 


PART 1 


usually any one among them whose career marks him out as 
practically the first man, but there is generally some one who 
is regarded as leading, and the person whom they have put 
forward as their party candidate for the Speakership, giving 
him what is called “the complimentary nomination/’ has a 
sort of vague claim to be so regarded. This honour carries 
little real authority. On one occasion the Speaker of the last 
preceding Congress, who had received such a complimentary 
nomination from his party against the candidate whom the 
majority elected, found immediately afterwards that so far from 
treating him as leader, they left him, on some motion which he 
made, in a ridiculously small minority. Of course when an 
exciting question comes up, some man of marked capacity and 
special knowledge will often become virtually leader, in either 
party, for the purposes of the debates upon it. But he will not 
necessarily command the votes of his own side. 

How then does the House work? 

If it were a Chamber, like those of France or Germany, 
divided into four or five sections of opinion, none of which 
commands a steady majority, it would not work at all. But 
parties are few in the United States, and their cohesion tight. 
There are usually two only, so nearly equal in strength that 
the majority cannot afford to dissolve into groups like those of 
France. Hence upon all large national issues, whereon the 
general sentiment of the party has been declared, both the 
majority and the minority generally vote solid, though upon 
minor issues much latitude is allowed. 

If the House were, like the English House of Commons, to 
some extent an executive as well as a legislative body — one by 
whose co-operation and support the daily business of govern¬ 
ment had to be carried on — it could not work without leaders 
and whips. This it is not. It neither creates, nor controls, 
nor destroys, the Administration, which depends on the Presi¬ 
dent, himself the offspring of a direct popular mandate. 

“Still,” it may be replied, “the House has important func¬ 
tions to discharge. Legislation comes from it. Supply de¬ 
pends on it. It settles the tariff, and votes money for the 
civil and military services, besides passing measures to cure 
the defects which experience must disclose in the working of 
every government, every system of jurisprudence. How can 
it satisfy these calls upon it without leaders and organization?” 



CHAP. XIV 


THE HOUSE AT WORK 


153 


To a European eye, it does not seem to satisfy them. It 
votes the necessary supplies, but not wisely, giving sometimes 
too much, sometimes too little money, and taking no adequate 
securities for the due application of the sums voted. For 
many years it fumbled over the tariff problem and the cur¬ 
rency problem. It produces few useful laws, and leaves on 
one side many grave practical questions. An Englishman 
is disposed to ascribe these failures to the fact that as there 
are no leaders, there is no one responsible for the neglect of 
business, the miscarriage of bills, the unwise appropriation 
of public funds. “In England,” he says, “the ministry of the 
day bears the blame of whatever goes wrong in the House of 
Commons. Having a majority, it ought to be able to do what 
it desires. If it pleads that its measures have been obstructed, 
and that it cannot under the faulty procedure of the House of 
Commons accomplish what it seeks, it is met, and crushed, by 
the retort that in such case it ought to have, the procedure 
changed. What else is its majority good for but to secure 
the efficiency of Parliament? In America there is no person 
against whom similar charges can be brought. Although 
conspicuous folly or perversity on the part of the majority 
tends to discredit them collectively with the public, and may 
damage them at the next presidential or congressional election, 
still responsibility, to be effective, ought to be fixed on a few 
conspicuous leaders. Is not the want of such men, men to 
whom the country can look, and whom the ordinary members 
will follow, the cause of some of the faults which are charged 
on Congress, of its hesitations, its inconsistencies and changes, 
its ignoble surrenders to some petty clique, its deficient sense 
of dignity, its shrinking from troublesome questions, its pro¬ 
clivity to jobs?” 

Two American statesmen to whom such a criticism was sub¬ 
mitted, replied as follows: “It is not for want of leaders that 
Congress has forborne to settle the questions mentioned, but 
because the division of opinion in the country regarding them 
has been faithfully reflected in Congress. The majority has not 
been strong enough to get its way; and this has happened, not 
only because abundant opportunities for resistance arise from 
the methods of doing business, but still more because no dis¬ 
tinct impulse or mandate towards any particular settlement of 
these questions has been received from the country. It is not 



154 


THE NATIONAL GOVERNMENT 


PART I 


for Congress to go faster than the people. When the country 
knows and speaks its mind, Congress will not fail to act.” The 
significance of this reply lies in its pointing to a fundamental 
difference between the conception of the respective positions 
and duties of a representative body and of the nation at large 
entertained by Americans, and the conception which has hitherto 
prevailed in Europe. Europeans have thought of a legislature 
as belonging to the governing class. In America there is no 
such class. Europeans think that the legislature ought to con¬ 
sist of the best men in the country, Americans that it should be 
a fair average sample of the country. Europeans think that it 
ought to lead the nation, Americans that it ought to follow the 
nation. 

Without some sort of organization, an assembly of more than 
four hundred men would be a mob, so necessity has provided 
in the system of committees a substitute for the European 
party organization. This system will be explained in the next 
chapter; for the present it is enough to observe that when a 
matter which has been (as all bills are) referred to a committee, 
comes up in the House to be dealt with there, the chairman of 
the particular committee is treated as a leader pro hac vice, and 
members who knew nothing of the matter are apt to be guided 
by his speech or his advice given privately. If his advice is 
not available, or is suspected because he belongs to the opposite 
party, they seek direction from the member in charge of the 
bill, if he belongs to their own party, or from some other mem¬ 
ber of the committee, or from some friend whom they trust. 
When a debate arises unexpectedly on a question of importance, 
members are often puzzled how to vote. The division being 
taken, they get some one to move a call of yeas and nays, and 
while this slow process goes on, they scurry about asking advice 
as to their action, and give their votes on the second calling over 
if not ready on the first. If the issue is one of serious conse¬ 
quence to the party, a recess is demanded by the majority, say 
for two hours. The House then adjourns, each party “goes 
into caucus” (the Speaker possibly announcing the fact), and 
debates the matter with closed doors. Then the House resumes, 
and each party votes solid according to the determination 
arrived at in caucus. In spite of these expedients, surprises 
and scratch votes are not uncommon. 

I have spoken of the din of the House of Representatives, of 



CHAP. XIV 


THE HOUSE AT WORK 


155 


its air of restlessness and confusion, contrasting with the staid 
gravity of the Senate, of the absence of dignity both in its pro¬ 
ceedings and in the bearing and aspect of individual members. 
All these things notwithstanding, there is something impressive 
about it, something not unworthy of the continent for which 
it legislates. 

This huge gray hall, filled with perpetual clamour, this mul¬ 
titude of keen and eager faces, this ceaseless coming and going 
of many feet, this irreverent public, watching from the galleries 
and forcing its way on to the floor, all speak to the beholder’s 
mind of the mighty democracy, destined in another century 
to form one-half of civilized mankind, whose affairs are here 
debated. If the men are not great, the interests and the issues 
are vast and fateful. Here, as so often in America, one thinks 
rather of the future than of the present. Of what tremendous 
struggles may not this hall become the theatre in ages yet far 
distant, when the parliaments of Europe have shrunk to in¬ 
significance ? 



CHAPTER XV 


THE COMMITTEES OF CONGRESS 

The most abiding difficulty of free government is to get large 
assemblies to work promptly and smoothly either for legisla¬ 
tive or executive purposes. We perceive this difficulty in pri¬ 
mary assemblies of thousands of citizens, like those of ancient 
Athens or Syracuse; we see it again in the smaller repre¬ 
sentative assemblies of modern countries. Three methods of 
overcoming it have been tried. One is to leave very few and 
comparatively simple questions to the assembly, reserving all 
others for a smaller and more permanent body, or for executive 
officers. This was the plan of the Romans, where the comitia 
(primary assemblies) were convoked only to elect magistrates 
and pass laws, which were short, clear, and submitted en bloc , 
without possibility of amendment, for a simple Yes or No. 
Another method is to organize the assemblies into well-defined 
parties, each recognizing and guided by one or more leaders, so 
that on most occasions and for most purposes the rank and file 
of members exert no volition of their own, but move like bat¬ 
talions at the word of command. This has been the English 
system since about the time of Queen Anne. It was originally 
worked by means of extensive corruption; and not till this 
phase was passing away did it become an object of admiration 
to the world. Latterly it has been reproduced in the parlia¬ 
ments of most modern European states and of the British colo¬ 
nies. The third method, which admits of being more or less 
combined with the second, is to divide the assembly into a 
number of smaller bodies to which legislative and administra¬ 
tive questions may be referred, either for final determination 
or to be reported on to the whole body. This is the system of 
committees, applied to some extent in England, to a larger ex¬ 
tent in France under the names of bureaux and commissions , 
and most of all in the United States. Some account of its 

156 


CHAP. XV 


THE COMMITTEES OF CONGRESS 


157 


rules and working there is essential to a comprehension of the 
character of Congress and of the relations of the legislative to 
the executive branch of the Federal Government. 

When Congress first met in 1789, both Houses found them¬ 
selves, as the State legislatures had theretofore been and still 
are, without official members and without leaders. 1 The Senate 
occupied itself chiefly with executive business, and appointed 
no standing committees until 1816. The House however 
had bills to discuss, plans of taxation to frame, difficult ques¬ 
tions of expenditure, and particularly of the national debt, 
to consider. For want of persons whose official duty required 
them, like English ministers, to run the machine by drafting 
schemes and bringing the raw material of its work into shape, 
it was forced to appoint committees. At first there were few; 
even in 1802 we find only five. As the numbers of the House 
increased and more business flowed in, additional committees 
were appointed; and as the House became more and more 
occupied by large political questions, minor matters were more 
and more left to be settled by these select bodies. Like all 
legislatures, the House constantly sought to extend its vision 
and its grasp, and the easiest way to do this was to provide 
itself with new eyes and new hands in the shape of further 
committees. The members were not, like their contemporaries 
in the English House of Commons, well-to-do men, mostly idle ; 
they were workers and desired to be occupied. It was impos¬ 
sible for them all to speak in the House; but all could talk in 
a committee. Every permanent body cannot help evolving 
some kind of organization. Here the choice was between creat¬ 
ing one ruling committee which should control all business, like 
an English ministry, and distributing business among a num¬ 
ber of committees, each of which should undertake a special 
class of subjects. The latter alternative was recommended, 
not only by its promising a useful division of labour, but by 
its recognition of republican equality. It therefore prevailed, 
and the present elaborate system grew slowly to maturity. 

To avoid the tedious repetition of details, I have taken the 
House of Representatives and its committees for description, 
because the system is more fully developed there than in the 

1 The Congress of the Confederation (1781-88) had been a sort of diplomatic 
congress of envoys from States, and furnished few precedents available for 
the Congress under the new constitution. 



158 


THE NATIONAL GOVERNMENT 


PART I 


Senate. But a very few words on the Senate may serve to pre¬ 
vent misconceptions. 

There were in the Sixty-first Congress (1909) seventy-two 
Senate committees, appointed for two years, being the period 
of a Congress. 1 They and their chairmen are chosen not by the 
presiding officer but by the Senate itself, voting by ballot. Prac¬ 
tically they are selected by caucuses of the majority and minor¬ 
ity meeting in secret conclave, and then carried wholesale by 
vote in the Senate. Each consists of from three to seventeen 
members, few having less than five or more than fourteen, and 
all senators sit on more than one committee, some upon four 
or more. The chairman is appointed by the Senate and not by 
the committees themselves. There are also select committees 
appointed for a special purpose and lasting for one session only. 
(Senate committees sometimes sit during the recess.) Every 
bill introduced goes after its first and second reading (which are 
granted as of course) to a standing committee, which examines 
and amends it, and reports it back to the Senate. 

There were in the Sixty-second Congress fifty-four standing 
committees of the House, i.e. committees appointed under 
standing regulations, and therefore regularly formed at the 
beginning of every Congress. Each committee consists of 
from three to twenty-one members, seven and nineteen being the 
commonest numbers. Every member of the House is placed on 
some one committee, not many on more than one. Besides these, 
select committees, seldom exceeding ten, on particular subjects 
of current interest are appointed from time to time. A complete 
list of the committees will be found at the end of this chapter. 
The most important standing committees are the following: — 
Ways and means; appropriations ; elections ; banking and cur¬ 
rency; accounts; rivers and harbours; judiciary (including 
changes in private law as well as in courts of justice); railways 
and canals ; foreign affairs ; naval affairs ; military affairs ; insu¬ 
lar affairs; public lands; agriculture; claims; and the several 
committees on the expenditures of the various departments of 
the administration (war, navy, etc.). 

The members of every committee are nominated at the begin¬ 
ning of each Congress, and sit through its two sessions. They 
are selected nominally by the House but practically by the 

1 Although the Senate is a, permanent body, its proceedings are for some pur¬ 
poses regulated with reference to the re-election every two years of the House ; as 
in England the peers are summoned afresh at the beginning of each Parliament. 



159 


chap, xv THE COMMITTEES OF CONGRESS 


committee of Ways and Means, whose selections the House 
approves. The majority members of that committee are chosen 
by the caucus of the majority party in the House, the House as a 
whole approving the choice made by the caucus. The member 
first named is its chairman. 

To some one of the standing committees each and every 
bill is referred. Its second as well as its first reading is granted 
as of course, and without debate, since there would be no 
time to discuss the immense number of bills presented. When 
read a second time it is referred under the general rules to a 
committee; but doubts often arise as to which is the appro¬ 
priate committee, because a bill may deal with a subject 
common to two or more jurisdictions, or include topics some 
of which belong to one jurisdiction, others to another. The 
disputes which may in such cases arise between several com¬ 
mittees lead to keen debates and divisions, because the fate of 
the measure may depend on which of two possible paths it is 
made to take, since the one may bring it before a tribunal of 
friends, the other before a tribunal of enemies. Such disputes 
are determined by the vote of the House itself. 

Not having been discussed, much less affirmed in principle, 
by the House, a bill comes before its committee with no pre¬ 
sumption in its favour, but rather as a shivering ghost stands 
before Minos in the nether world. It is one of many, and for 
the most a sad fate is reserved. The committee may take evi¬ 
dence regarding it, may hear its friends and its opponents. 
They usually do hear the member who has introduced it, since 
it seldom happens that he has himself a seat on the committee. 
Members who are interested approach the committee and state 
their case there, not in the House, because they know that the 
House will have neither time nor inclination to listen. The 
committee can amend the bill as they please, and although 
they cannot formally extinguish it, they can practically do so 
by reporting adversely, or by delaying to report it till late in 
the session, or by not reporting it at all. 

In one or other of these ways nineteen-twentieths of the 
bills introduced meet their death, a death which the majority 
doubtless deserve, and the prospect of which tends to make 
members reckless as regards both the form and the substance 
of their proposals. A motion may be made in the House that 
the committee do report forthwith, and the House can of 





160 


THE NATIONAL GOVERNMENT 


PART I 


course restore the bill, when reported, to its original form. 
But these expedients rarely succeed, for few are the measures 
which excite sufficient interest to induce an impatient and 
over-burdened assembly to take additional work upon its own 
shoulders or to overrule the decision of a committee. 

The deliberations of committees are usually secret. Evi¬ 
dence is frequently taken with open doors, but the newspapers 
do not report it, unless the matter excite public interest; and 
even the decisions arrived at are often noticed in the briefest 
way. It is out of order to canvass the proceedings of a com¬ 
mittee in the House until they have been formally reported to 
it; and the report submitted does not usually state how the 
members have voted, or contain more than a very curt outline 
of what has passed. No member speaking in the House is 
entitled to reveal anything further. 

A committee have technically no right to initiate a bill, but 
as they can either transform one referred to them, or, if none 
has been referred which touches the subject they seek to deal 
with, can procure one to be brought in and referred to them, 
their command of their own province is unbounded. Hence 
the character of all the measures that may be passed or even 
considered by the House upon a particular branch of legisla¬ 
tion depends on the composition of the committee concerned 
with that branch. Some committees, such as those on naval 
and military affairs, and those on the expenditure of the sev¬ 
eral departments, deal with administration rather than leg¬ 
islation. They may summon the officials of the departments 
before them, and interrogate them as to their methods and con¬ 
duct. Authority they have none, for officials are responsible 
only to their chief, the President, who may refuse to allow the 
official to appear; but the power of questioning is sufficient to 
check if not to guide the action of a department, since impera¬ 
tive statutes may follow, and the department, sometimes de¬ 
siring legislation and always desiring money, has strong motives 
for keeping on good terms with those who control legislation 
and the purse. It is through these committees chiefly that 
the executive and legislative branches of government touch one 
another. Yet the contact, although the most important thing 
in a government, is the thing which the nation least notices, and 
has the scantiest means of watching. 

The scrutiny to which the administrative committees subject 



CHAP. XV 


THE COMMITTEES OF CONGRESS 


161 


the departments is so close and constant as to occupy much 
of the time of the officials and seriously interfere with their 
duties. Not only are they often summoned to give evidence : 
they are required to furnish minute reports on matters which 
a member of Congress could ascertain for himself. Neverthe¬ 
less the House committees are not certain to detect abuses or 
peculation, for special committees of the Senate have repeatedly 
unearthed dark doings which had passed unsuspected the ordeal 
of a House investigation. After a bill has been debated and 
amended by the committee it is reported back to the House, 
and is taken up when that committee is called in its order. 
One hour is allowed to the member whom his fellow committee¬ 
men have appointed to report. He seldom uses the whole of 
this hour, but allots part of it to other members, opponents 
as well as friends, and usually concludes by moving the pre¬ 
vious question. This precludes subsequent amendments and 
leaves only an hour before the vote is taken. As on an average 
each committee (excluding the two or three great ones) has only 
two hours out of the whole ten months of Congress allotted to it 
to present and have discussed all its bills, it is plain that few 
measures can be considered, and each but shortly, in the House. 
The best chance of pressing one through is under the rule which 
permits the suspension of standing orders by a two-thirds major¬ 
ity during the last six days of the session. 

What are the results of this system ? 

It destroys the unity of the House as a legislative body. 
Since the practical work of shaping legislation is done in the 
committees, the interest of members centres there, and they 
care less about the proceedings of the whole body. It is as a 
committee-man that a member does his real work. In fact the 
House has become not so much a legislative assembly as a 
huge panel from which committees are selected. 

It prevents the capacity of the best members from being 
brought to bear upon any one piece of legislation, however im¬ 
portant. The men of most ability and experience are chosen 
to be chairmen of the committees, or to sit on the two or three 
greatest. For other committees there remains only the rank 
and file of the House, a rank and file nearly half of which is new 
at the beginning of each Congress. Hence every committee (ex¬ 
cept the aforesaid two or three) is composed of ordinary per¬ 
sons, and it is impossible, save by creating a special select com- 


M 



162 


THE NATIONAL GOVERNMENT 


PART I 


mittee, to get together what would be called in England 
“a strong committee,” i.e. one where half or more of the 
members are exceptionally capable. The defect is not sup¬ 
plied by discussion in the House, for there is no time for such 
discussion. 

It cramps debate. Every foreign observer has remarked 
how little real debate, in the European sense, takes place in the 
House of Representatives. The very habit of debate, the ex¬ 
pectation of debate, the idea that debate is needed, have van¬ 
ished, except as regards questions of revenue and expenditure, 
because the centre of gravity has shifted from the House to 
the committees. 

It lessens the cohesion and harmony of legislation. Each 
committee goes on its own way with its own bills just as 
though it were legislating for one planet and the other com¬ 
mittees for others. Hence a want of policy and method in 
congressional action. The advance is haphazard; the parts 
have little relation to one another or to the whole. 

It gives facilities for the exercise of underhand and even 
corrupt influence. In a small committee the voice of each 
member is well worth securing, and may be secured with little 
danger of a public scandal. The press cannot, even when the 
doors of committee rooms stand open, report the proceedings 
of sixty bodies; the eye of the nation cannot follow and mark 
what goes on within them; while the subsequent proceedings 
in the House are too hurried to permit a ripping up there of 
suspicious bargains struck in the purlieus of the Capitol, and 
fulfilled by votes given in a committee. I do not think that 
corruption, in its grosser forms, is rife at Washington. It 
appears chiefly in the milder form of reciprocal jobbing or (as 
it is called) “log-rolling.” But the arrangements of the com¬ 
mittee system have produced and sustain the class of profes¬ 
sional “ lobbyists,” persons who make it their business to “see” 
members and procure, by persuasion, importunity, or the use 
of inducements, the passing of bills, public as well as private, 
which involve gain to their promoters. 

It reduces responsibility. In England, if a bad Act is passed 
or a good bill rejected, the blame falls primarily upon the ministry 
in power whose command of the majority would have enabled 
them to defeat it, next upon the party which supported the 
ministry, then upon the individual members who are officially 



CHAP. XV 


THE COMMITTEES OF CONGRESS 


163 


recorded to have “backed” it and voted for it in the House. 
The fact that a select committee recommended it — and com¬ 
paratively few bills pass through a select committee — would 
not be held to excuse the default of the ministry and the majority. 
But in the United States the ministry cannot be blamed, for 
the cabinet officers do not sit in Congress; the House cannot 
be blamed because it has only followed the decision of its com¬ 
mittee ; the committee may be an obscure body, whose members 
are too insignificant to be worth blaming. The chairman is pos¬ 
sibly a man of note, but the people have no leisure to watch 
sixty chairmen : they know Congress and Congress only ; they 
cannot follow the acts of those to whom Congress chooses to dele¬ 
gate its functions. No discredit attaches to the dominant 
party, because they could not control the acts of the eleven 
men in the committee room. This public displeasure rarely 
finds a victim, and everybody concerned is relieved from the 
wholesome dread of damaging himself and his party by neg¬ 
ligence, perversity, or dishonesty. Only when a scandal has 
arisen so serious as to demand investigation is the responsi¬ 
bility of the member to his constituents and the country 
brought duly home. 

It lowers the interest of the nation in the proceedings of 
Congress . 1 Except in exciting times, when large questions 
have to be settled, the bulk of real business is done not in the 
great hall of the House but in this labyrinth of committee 
rooms and the lobbies that surround them. What takes place 
in view of the audience is little more than a sanction, formal 
indeed but hurried and often heedless, of decisions procured 
behind the scenes, whose mode and motives remain undisclosed. 
Hence people cease to watch Congress with that sharp eye 
which every principal ought to keep fixed on his agent. Acts 
pass unnoticed whose results are in a few months discovered 

1 “The doubt and confusion of thought which must necessarily exist in the 
minds of the vast majority of voters as to the best way of exerting their will 
in influencing the action of an assembly whose organization is so complex, 
whose acts are apparently so haphazard, and in which responsibility is spread 
so thin, throws constituencies into the hands of local politicians who are more 
visible and tangible than are the leaders of Congress, and generates the while 
a profound distrust of Congress as a body whose actions cannot be reckoned 
beforehand by any standard of promises made at elections or any programmes 
announced by conventions.” — Woodrow Wilson, Congressional Government, a 
thoughtful book most of the remarks in which remain true to-day, though it was 
published more than a quarter of a century ago. 



164 


THE NATIONAL GOVERNMENT 


PAKT I 


to be so grave that the newspapers ask how it happened that 
they were allowed to pass. 

The country of course suffers from the want of the light and 
leading on public affairs which debates in Congress ought to 
supply. But this is more fairly chargeable to defects of the 
House which the committees are designed to mitigate than to 
the committees themselves. The time which the committee 
work leaves for the sittings of the House is long enough to permit 
due discussion did better arrangements exist for conducting it. 

It throws power into the hands of the chairmen of commit¬ 
tees, especially, of course, of those which deal with finance and 
with great material interests. They become practically a 
second set of ministers, before whom the departments tremble, 
and who, though they can neither appoint nor dismiss a post¬ 
master or a tide-waiter, can by legislation determine the policy 
of the branch of administration which they oversee. This 
power is not necessarily accompanied by responsibility, because 
it is largely exercised in secret. 

It enables the House to deal with a far greater number of 
measures and subjects than could otherwise be overtaken; and 
has the advantage of enabling evidence to be taken by those 
whose duty it is to re-shape or amend a bill. It replaces the 
system of interrogating ministers in the House which prevails 
in most European chambers; and enables the working of the 
administrative departments to be minutely scrutinized. 

It sets the members of the House to work for which their 
previous training has fitted them much better than for either 
legislating or debating “in the grand style.” They are shrewd, 
keen men of business, apt for talk in committee, less apt for 
wide views of policy and elevated discourse in an assembly. 
The committees are therefore good working bodies, but bodies 
which confirm congressmen in the intellectual habits they bring 
with them instead of raising them to the higher platform of 
national questions and interests. 

Summing up, we may say that under this system the House 
despatches a vast amount of work and does the negative part 
of it, the killing off of worthless bills, in a thorough way. 
Were the committees abolished and no other organization sub¬ 
stituted, the work could not be done. But much of it, includ¬ 
ing most of the private bills, ought not to come before Congress 
at all; and the more important part of what remains, viz. 




CHAP. XV 


THE COMMITTEES OF CONGRESS 


165 


public legislation, is dealt with by methods which secure neither 
the pressing forward of the measures most needed, nor the due 
debate of those that are pressed forward. 

Why, if these mischiefs exist, is the system of committee 
legislation maintained ? 

It is maintained because none better has been, or, as most 
people think, can be devised. “We have/’ say the Americans, 
“over four hundred members in the House, most of them 
eager to speak, nearly all of them giving constant attendance. 
The bills brought in are so numerous that in our two sessions, 
one of seven or eight months, the other of three months, not 
one-twentieth could be fairly discussed on second reading or 
in committee of the Whole. If even this twentieth were dis¬ 
cussed, no time would remain for supervision of the depart¬ 
ments of State. That supervision itself must, since it involves 
the taking of evidence, be conducted through committees. In 
England one large and strong committee, viz. the ministry of 
the day, undertakes all the more important business, and watches' 
even the bills of private members. Your House of Commons 
could not work for a single sitting without such a committee, 
as is proved by the fact that when you are left for a little without 
a ministry, the House adjourns. We cannot have such a com¬ 
mittee, because no office-holder sits in Congress. Neither can 
we organize the House under leaders, because prominent men 
have among us little authority, since they are unconnected 
with the executive, and derive from the people no title to leader¬ 
ship . 1 Neither can we create a ruling committee of the majority, 
because this would be disliked as an undemocratic institution. 
Hence our only course is to divide the unwieldy multitude into 
small bodies capable of dealing with particular subjects. Each 
of them is no doubt powerful in its own sphere, but that sphere 
is so small that no grave harm can result. The Acts passed 
may not be the best possible; the legislation of the year may 
resemble a patchwork quilt, where each piece is different in 

1 In England the prime minister and the leader of the Opposition (often an 
ex-prime minister) have been recognized as leaders not only by the candidates 
who at the last preceding general election have declared their willingness to 
support one or other, but also by the rank and file of their respective parties. 
These leaders have thus a sort of right to the allegiance of their followers, 
though a right which they may forfeit. In America no candidate pledges 
himself to support a particular congressional leader. It would be thought 
unbecoming in him to do so. His allegiance is to the party, and his constitu¬ 
ents do not expect him to support any given person, however eminent. 



166 


THE NATIONAL GOVERNMENT 


PART I 


colour and texture from the rest. But as we do not need much 
legislation, and as nearly the whole field of ordinary private law 
lies outside the province of Congress, the mischief is slighter 
than you Europeans expect. If we made legislation easier, we 
might have too much of it; and in trying to give it the more 
definite character you suggest, we might make it too bold and 
sweeping. Be our present system bad or good, it is the only 
system possible under our Constitution, and the fact that it was 
not directly created by that instrument, but has been evolved 
by the experience of four or five generations, shows how strong 
must be the tendencies whose natural working has produced it.” 

NOTE TO CHAPTER XV 

List of Standing and Select Committees of the House in the Sixty- 
first Congress, Second Session. (Corrected to April, 1910.) 

On Ways and Means ; Appropriations ; Judiciary ; Banking and Cur¬ 
rency ; Coinage, Weights and Measures ; Interstate and Foreign Com¬ 
merce : Rivers and Harbours ; Merchant Marine and Fisheries ; Agri¬ 
culture ; Elections (three Committees) ; Foreign Affairs; Military 
Affairs ; Naval Affairs ; Post Office and Post Roads ; Public Lands ; 
Indian Affairs ; Territories ; Railways and Canals ; Manufactures ; 
Mines and Mining; Public Buildings and Grounds; Pacific Rail¬ 
roads ; Levees and Improvements of the Mississippi River; Educa¬ 
tion ; Labour ; Militia ; Patents ; Invalid Pensions ; Pensions ; Claims ; 
War Claims ; Private Land Claims ; District of Columbia ; Revision 
of the Laws ; Expenditures in the State Department; Do., Treasury 
Department; Do., War Department; Do., Navy Department; Do., 
Post Office Department; Do., Interior Department; Do., Depart¬ 
ment of Justice ; Do., Agriculture ; Do., Department of Commerce and 
Labour ; Do., Public Buildings ; Rules ; Accounts ; Mileage ; Library ; 
Printing ; Enrolled Bills : Select Committees — Reform in the Civil 
Service ; Election of President and Vice-President; Census ; Ventila¬ 
tion and Acoustics ; Alcoholic Liquor Traffic ; Irrigation of Arid Lands ; 
Immigration and Naturalization; Industrial Arts and Expositions ; 
Disposition of Useless Papers in the Executive Departments (joint). 

The committees in the Sixty-second Congress differed very little 
from this list. 





CHAPTER XVI 


CONGRESSIONAL LEGISLATION 

Legislation is more specifically and exclusively the busi¬ 
ness of Congress than it is the business of governing parlia¬ 
ments such as those of England, France, and Italy. We must 
therefore, in order to judge of the excellence of Congress as a 
working machine, examine the quality of the legislation which 
it turns out. 

Acts of Congress are of two kinds, public and private. Pass¬ 
ing by private acts for the present, though they occupy a large 
part of congressional time, 1 let us consider public acts. These 
are of two kinds, those which deal with the law or its administra¬ 
tion, and those which deal with finance, that is to say, provide 
for the raising and application of revenue. I devote this chap¬ 
ter to the former class, and the next to the latter. 

There are many points of view from which one may regard 
the work of legislation. I suggest a few only, in respect of 
which the excellence of the work may be tested; and propose 
to ask : What security do the legislative methods and habits 
of Congress offer for the attainment of the following desirable 
objects? viz. : — 

1. The excellence of the substance of a bill, i.e. its tendency 
to improve the law and promote the public welfare. 

2. The excellence of the form of a bill, i.e. its arrangement 
and the scientific precision of its language. 

3. The harmony and consistency of an act with the other 
acts of the same session. 

4. The due examination and sifting in debate of a bill. 

5. The publicity of a bill, i.e. the bringing it to the know¬ 
ledge of the country at large, so that public opinion may be fully 
expressed regarding it. 

6. The honesty and courage of the legislative assembly in 

1 Some remarks on private bills will be found in Note A to this chapter at 
the end of this volume. 

167 


168 


THE NATIONAL GOVERNMENT 


PART I 


rejecting a bill, however likely to be popular, which their judg¬ 
ment disapproves. 

7. The responsibility of some person or body of persons for 
the enactment of a measure, i.e. the fixing on the right shoul¬ 
ders of the praise for passing a good, the blame for passing a bad, 
act. 

The criticisms that may be passed on American practice 
under the preceding heads will be made clearer by a compari¬ 
son of English practice. Let us therefore first see how English 
bills and acts stand the tests we are to apply to the work of 
Congress. 

In England public bills fall into two classes,— those brought 
in by the ministry of the day as responsible advisers of the 
sovereign, and those brought in by private members. In point 
of law and in point of form there is no difference between these 
classes. Practically there is all the difference in the world, 
because a government bill has behind it the responsibility of 
the ministry, and presumably the weight of the majority which 
keeps the ministry in office. The ministry dispose of more than 
a half of the working time of the House, and have therefore 
much greater facilities for pushing forward their bills. Nearly 
all the most important bills, which involve large political issues, 
are government bills, so that the hostile critic of a private mem¬ 
ber’s bill will sometimes argue that the House ought not to per¬ 
mit the member to proceed with it, because it is too large for 
any unofficial hands. This premised, we may proceed to the 
seven points above mentioned. 

1. In England, as the more important bills are government 
bills, their policy is sure to have been carefully weighed. The 
ministry have every motive for care, because the fortunes of a 
first-class bill are their own fortunes. If it is rejected, they fall. 
A specially difficult bill is usually framed by a committee of the 
cabinet, and then debated by the cabinet as a whole before it 
appears in Parliament. Minor bills are settled in the depart¬ 
ments by the parliamentary head with his staff of permanent 
officials. 

2. In England, government bills are prepared by the official 
government draftsmen, two eminent lawyers with several 
assistants, who constitute an office for this purpose. Private 
members who are lawyers often draft their own bills; those 
who are not generally employ a barrister. The drafting of 



CHAP. XVI 


CONGRESSIONAL LEGISLATION 


169 


government bills has improved of late years, and the faults of 
form still observable in British Acts are chiefly due to amend¬ 
ments made hurriedly in committee of the whole House. 

3. The harmony of one government bill with others of the 
same session is secured by the care of the official draftsmen, as 
well as by the fact that all emanate from one and the same 
ministry. No such safeguards exist in the case of private 
members’ bills, but it is of course the duty of the ministry to 
watch these legislative essays, and get Parliament to strike 
out of any one of them whatever is inconsistent with another 
measure passed or intended to be passed in the same session. 

4. Difficult and complicated bills which raise no political 
controversy are sometimes referred to a select committee, which 
goes through them and reports them as amended to the House. 
They are afterwards considered, first in committee of the Whole, 
and then by the House on the stage of report from committee 
of the Whole to the House. Such bills are now often referred 
to what are called Grand Committees, i.e. committees of at 
least fifty appointed in each session for the consideration of 
particular kinds of business, discussion in which replaces the 
discussion in committee of the Whole. Many bills, however, 
never go before select or grand committees. While measures 
which excite political feeling or touch any powerful interest 
(such as that of landowners or railroads or liquor-dealers) are 
exhaustively debated, others may slip through unobserved. 
The enormous pressure of work and the prolixity with which 
some kinds of business are discussed, involve the hurrying other 
business through with scant consideration. 

5. Except in the case of discussions at unseasonable hours, 
the proceedings of Parliament are so far reported in the leading 
newspapers and commented on by them that bills, even those 
of private members, generally become known to those whom 
they may concern. There is usually a debate on the second 
reading, and this debate attracts notice. 

6. A government bill is, by the law of its being, exposed to 
the hostile criticism of the Opposition, who have an interest 
in discrediting the ministry by disparaging their work. As re¬ 
spects private members’ bills, it is the undoubted duty of some 
minister to watch them, and to procure their amendment or re¬ 
jection if he finds them faulty. This duty is discharged les 

’ faithfully than might be wished, but perhaps as well as can b'i 



170 


THE NATIONAL GOVERNMENT 


PART I 


expected from weak human nature, often tempted to conciliate 
a supporter or an “interest” by allowing a measure to go through 
which ought to have been stopped. 

7. Responsibility for everything done in the House rests 
upon the ministry of the day, because they are the leaders of 
the majority. If they allow a private member to pass a bad 
bill, if they stop him when trying to pass a good bill, they are 
in theory no less culpable than if they pass a bad bill of their 
own. Accordingly, when the second reading of a measure of 
consequence is moved, it is the duty of some member of the 
ministry to rise, with as little delay as possible, and state 
whether the ministry support it, or oppose it, or stand neutral. 
Standing neutral is, so far as responsibility to the country goes, 
practically the same thing as supporting. The Opposition, 
as an organized body, are not expected to express their opinion 
on any bills except those of high political import. Needless to 
say, private members are also held strictly responsible for the 
votes they give, these votes being all recorded and published 
next morning. Of course both parties claim praise or receive 
blame from the country in respect of their attitude towards 
bills of moment, and when a session has produced few or feeble 
Acts the Opposition charge the Ministry with sloth or incom¬ 
petence. 

The rules and usages I have described constitute valuable 
aids to legislation, and the quality of English and Scottish 
legislation, take it all and all, is good; that is to say, the stat¬ 
utes are such as public opinion (whether rightly or wrongly) 
demands, and are well drawn for the purposes they aim at. 

Let us now apply the same test to the legislation of Con¬ 
gress. What follows refers primarily to the House, but is largely 
true of the Senate, because in the Senate also the committees 
play an important part. 

In neither House of Congress are there any government 
bills. All measures are brought in by private members because 
all members are private. The nearest approach to the govern¬ 
ment bill of England is one brought in by a leading member 
of the majority in pursuance of a resolution taken in the con¬ 
gressional caucus of that majority. This seldom happens. 
One must therefore compare the ordinary congressional bill 
with the English private member’s bill rather than with a govern¬ 
ment measure, and expect to find it marked by the faults that 



CHAP. XVI 


CONGRESSIONAL LEGISLATION 


171 


mark the former class. The second difference is that whereas 
in England the criticism and amendment of the most important 
bills takes place in committee of the Whole, and of other public 
bills in one of the large Standing Committees introduced since 
1883, in the House of Representatives it takes place in a small 
committee of twenty members or less, often of seven. In the 
Senate also the committees do most of the work, but the com¬ 
mittee of the Whole occasionally debates a bill pretty fully. 

Premising these dissimilarities, I go to the seven points before 
mentioned. 

1. The excellence of the substance of a bill introduced in 
Congress depends entirely on the wisdom and care of its in¬ 
troducer. He may, if self-distrustful, take counsel with his 
political allies respecting it. But there is no security for its 
representing any opinion or knowledge but his own. It may 
affect the management of an executive department, but the 
introducing member may not command departmental informa¬ 
tion, and will, if the bill passes, have nothing to do with the 
carrying out of its provisions. On the other hand, the officials 
of the government do not themselves introduce bills though 
they may draft them; and when they find a congressman 
willing to bring them in, must leave the advocacy and conduct 
of a measure largely in his hands. 

2. The drafting of a measure depends on the pains taken 
and skill exerted by its author. Senate bills are usually well 
drafted because many senators are experienced lawyers: 
House bills are often crude and obscure. There does not exist 
either among the executive departments or in connection with 
Congress, any legal office charged with the duty of preparing 
bills, or of seeing that the form in which they pass is technically 
satisfactory. 

3. The only security for the consistency of the various measures 
of the same session is to be found in the fact that those which 
affect the same matter ought to be referred to the same com¬ 
mittee. However, it often happens that there are two or more 
committees whose spheres of jurisdiction overlap, so that of two 
bills handling cognate matters, one may go to Committee A 
and the other to Committee B. Should different views of policy 
prevail in these two bodies, they may report to the House bills 
containing mutually repugnant provisions. There is nothing 
except unusual vigilance on the part of some member interested, 



172 


THE NATIONAL GOVERNMENT 


PART I 


to prevent both bills from passing. That mischief from this 
cause is not serious arises from the fact that out of the multitude 
of bills introduced, few are reported and still fewer became law. 

4. The function of a committee of either House of Congress 
extends not merely to the sifting and amending of the bills referred 
to it, but to practically re-drawing them, if the committee desires 
any legislation, or rejecting them by omitting to report them 
till near the end of the session if it thinks no legislation needed. 
Every committee is in fact a small bureau of legislation for the 
matters lying within its jurisdiction. It has for this purpose 
the advantage of time, of the right to take evidence, and of the 
fact that some of its members have been selected from their 
knowledge of or interest in the topics it has to deal with. On 
the other hand, it suffers from the non-publication of its de¬ 
bates, and from the tendency of all small and secret bodies to 
intrigues and compromises, compromises in which general prin¬ 
ciples of policy are sacrificed to personal feeling or selfish 
interest. Bills which go in black or white come out gray. 
They may lose all their distinctive colour; or they may be 
turned into a medley of scarcely consistent provisions. The 
member who has introduced a bill may not have a seat on 
the committee, and may therefore be unable to protect his 
offspring. Other members of the House, masters of the sub¬ 
ject but not members of the committee, can only be heard 
as witnesses. Although therefore there are full opportuni¬ 
ties for the discussion of the bill by the committee, it often 
emerges in an unsatisfactory form, or is quietly suppressed, 
because there is no impetus of the general opinion of the House 
or the public to push it through. When the bill comes back to 
the House the chairman or other reporting member of the com¬ 
mittee generally moves the previous question, after which no 
amendment can be offered. Debate ceases and the bill is 
promptly passed or lost. In the Senate there is a better 
chance of discussion, for the Senate, having more time and 
fewer speakers, can review to some real purpose the findings of 
its committees. 

5. As there is no debate on the introduction or on the second 
reading of a bill, the public is not necessarily apprised of the 
measures which are before Congress. An important measure 
is of course watched by the newspapers and so becomes known : 
minor measures go unnoticed. 



CHAP. XVI 


CONGRESSIONAL LEGISLATION 


173 


6. The general good-nature of Americans, and the tendency 
of members of their legislatures to oblige one another by doing 
reciprocal good turns, dispose people to let any bill go through 
which does not injure the interest of a party or of a person. 
Such good-nature counts for less in a committee, because a com¬ 
mittee has its own views and gives effect to them. But in the 
House there are few views, though much impatience. The 
House has no time to weigh the merits of a bill reported back 
to it. Members have never heard it debated. They know no 
more of what passed in the committee than the report tells 
them. If the measure is palpably opposed to their party tenets, 
the majority will reject it: if no party question arises they 
usually adopt the view of the committee. 

7. What has been said already will have shown that except 
as regards bills of great importance, or directly involving party 
issues, there can be little effective responsibility for legislation. 
The member who brings in a bill is not responsible, because the 
committee generally alters his bill. The committee is little 
observed and the details of what passed within the four walls 
of its room are not published. The great parties in the House 
are but faintly responsible, because their leaders are not bound 
to express an opinion, and a vote taken on a non-partisan bill is 
seldom a strict party vote. Individual members are no doubt 
responsible, and a member who votes against a popular meas¬ 
ure, one for instance favoured by the working men, will suffer 
for it. 1 But the responsibility of individuals, most of them 
insignificant, half of them destined to vanish, like snow-flakes 
in a river, at the next election, gives little security to the people. 

The best defence that can be advanced for this system is that 
it has been naturally evolved as a means of avoiding worse 
mischiefs. It is really a plan for legislating by a number of 
commissions. Each commission, receiving suggestions in the 
shape of bills, taking evidence upon them, and sifting them in 
debate, frames its measures and lays them before the House in 
a shape which seems designed to make amendment in details 
needless, while leaving the general policy to be accepted or 
rejected by a simple vote of the whole body. In this last 

i The member who has taken this course is the worse off, because he rarely 
has an opportunity of explaining by a speech in the House his reason for his 
vote, and is therefore liable to the imputation of having been got at by 
capitalists. 



174 


THE NATIONAL GOVERNMENT 


PART 


respect the plan may be compared with that of the Romans 
during the Republic, whose general assembly of the people 
approved or disapproved of a bill as a whole, without power of 
amendment, a plan which had the advantage of making laws 
clear and simple. At Rome, however, bills could be proposed 
only by a magistrate upon his official responsibility; they were 
therefore comparatively few and sure to be carefully drawn. 
The members of American legislative commissions have no 
special training, no official experience, little praise or blame to 
look for, and no means of securing that the overburdened House 
will ever come to a vote on their proposals. There is no more 
agreement between the views of one commission and another 
than what may result from the fact that the majority in both 
belongs to the same party. 

Add to the conditions above described the fact that the 
House in its few months of life has not time to deal with one- 
twentieth of the many thousand bills which are thrown upon 
it, that it therefore drops the enormous majority unconsidered, 
though some of the best may be in this majority, and passes 
most of those which it does pass by a suspension of the rules 
which leaves everything to a single vote , 1 and the marvel comes 
to be, not that legislation is faulty, but that an intensely practical 
people tolerates such defective machinery. Some reasons may 
be suggested tending to explain this phenomenon. 

Legislation is a difficult business in all free countries, and 
perhaps more difficult the more free the country is, because 
the discordant voices are more numerous and less under con¬ 
trol. America has sometimes sacrificed practical convenience 
to her dislike to authority. 

The Americans surpass all other nations in their power of 
making the best of bad conditions, getting the largest results 
out of scanty materials or rough methods. Many things in 
that country work better than they ought to work, so to speak, 
or could work in any other country, because the people are 
shrewdly alert in minimizing such mischiefs as arise from their 
own haste or heedlessness, and because they have a great 
capacity for self-help. 

Aware that they possess this gift, the Americans have been 
content to leave their political machinery unreformed. Persons 

1 This can be done by a two-thirds vote during the last six days of a session 
and on the first and third Mondays of each month. 




CHAP. XVI 


CONGRESSIONAL LEGISLATION 


175 


who propose comprehensive reforms are suspected as theorists 
or faddists. The national inventiveness, active in the spheres 
of mechanics and money-making, spends little of its force on the 
details of governmental methods, and the interest in material 
development tends to diminish the interest felt in politics. 
Nevertheless a certain change of attitude is evidenced by the 
much greater attention now given in the Universities to the 
teaching of the principles and practice of government and 
administration. 

The want of legislation on topics where legislation is needed 
breeds fewer evils than would follow in countries like England 
or France where Parliament is the only law-making body. 
The powers of Congress are limited to comparatively few 
subjects: its failures are supposed seldom to touch the general 
well-being of the people, or the healthy administration of the 
ordinary law. 

The faults of bills passed by the House are often cured by 
the Senate, where discussion, if not conducted with a purer public 
spirit, is at least more leisurely and thorough. The committee 
system produces in that body also some of the same flabbiness 
and colourlessness in bills passed. But the blunders, whether 
in substance or of form, of the one chamber are frequently cor¬ 
rected by the other, and many bad bills fail owing to a division 
of opinion between the Houses. 

The Speaker had and the managing committee now has, 
through their control of business in the House, what practically 
amounts to a veto upon bills; and not a few thus perish. 

The President’s veto kills off some vicious measures. He 
does not trouble himself about defects of form; but where a 
bill seems to him opposed to sound policy, it is his constitu¬ 
tional duty to disapprove it, and to throw on Congress the 
responsibility of passing it “over his veto” by a two-thirds 
vote. A good President accepts this responsibility. 



CHAPTER XVII 


CONGRESSIONAL FINANCE 

Finance is a sufficiently distinct and important department 
of legislation to need a chapter to itself; nor does any legisla¬ 
ture devote so large a proportion of its time as does Congress 
to the consideration of financial bills. These are of two kinds : 
those which raise revenue by taxation, and those which direct 
the application of the public funds to the various expenses of 
the government. At present Congress raises all the revenue it 
requires by indirect taxation , 1 and chiefly by duties of customs 
and excise; so taxing bills are practically tariff bills, the excise 
duties being comparatively little varied from year to year. 

The method of passing both kinds of bills is unlike that of 
most European countries. In England, with which, of course, 
America can be most easily compared, although both the 
levying and the spending of money are absolutely under the 
control of the House of Commons, the House of Commons 
originates no proposal for either. It never either grants money 
or orders the raising of money except at the request of the 
Crown. Once a year the Chancellor of the Exchequer lays 
before it, together with a full statement of the revenue and 
expenditure of the past twelve months, estimates of the ex¬ 
penditure for the coming twelve months, and suggestions for 
the means of meeting that expenditure by taxation or by bor¬ 
rowing. He embodies these suggestions in resolutions on 
which, when the House has accepted them, bills are grounded 
imposing certain taxes or authorizing the raising of a loan. 
The House may of course amend the bills in details, but no 
private member ever proposes a taxing bill, for it is no con¬ 
cern of any one except the ministry to fill the public treasury . 2 

1 During the Civil War, direct taxes were levied (the proceeds of which 
have, however, been since returned to the States) ; and many other kinds of 
taxes besides those mentioned in the text have been imposed at different times. 

2 Of course a private member may carry a resolution involving additional 
expenditure; but even this is at variance with the stricter constitutional doc- 

176 


CHAP. XVII 


CONGRESSIONAL FINANCE 


177 


The estimates prepared by the several administrative depart¬ 
ments (Army, Navy, Office of Works, Foreign Office, etc.) s 
and revised by the Treasury, specify the items of proposed 
expenditure with much particularity, and fill three or more 
bulky volumes, which are delivered to every member of the 
House. These estimates are debated in committee of the 
whole House, explanations being required from the ministers 
who represent the Treasury and the several departments, and 
are passed in a long succession of separate votes. Members 
may propose to reduce any particular grants, but not to in¬ 
crease them; no money is ever voted for the public service 
except that which the Crown has asked for through its minis¬ 
ters. The Crown must never ask for more than it actually 
needs, and hence the ministerial proposals for taxation are 
carefully calculated to raise, just so much money as will easily 
cover the estimated expenses for the coming year. It is reck¬ 
oned almost as great a fault in the finance minister if he has 
needlessly overtaxed the people, as if he has so undertaxed 
them as to be left with a deficit. If at the end of a year a 
substantial surplus appears, the taxation for next year is re¬ 
duced in proportion, supposing that the expenditure remains 
the same. Every credit granted by Parliament expires of 
itself at the end of the financial year. * 

In the United States the Secretary of the Treasury sends 
annually to Congress a report containing a statement of the 
national income and expenditure and of the condition of the 
public debt, together with remarks on the system of taxation 
and suggestions for its improvement. He also sends what is 
called his Annual Letter, enclosing the estimates, framed by 
the various departments, of the sums needed for the public ser¬ 
vices of the United States during the coming year . 1 So far 
the Secretary is like a European finance minister, except that 
he communicates with the chamber on paper instead of mak¬ 
ing his statement and proposals orally. But here the resem¬ 
blance stops. Whatever remains in the way of financial legis- 

trine and practice ; a doctrine regarded by the statesmen of the last generation 
as extremely valuable, because it restrains the propensity of a legislature to 
yield to demands emanating from sections or classes, which may entail heavy 
and perhaps unprofitable charges on the country. See the observations of Mr. 
Gladstone in the House of Commons, March 22, 1886. 

1 This has now become a bulky volume. In it he neither endorses nor criti¬ 
cizes the estimates. 

N 



178 


THE NATIONAL GOVERNMENT 


PART I 


lation is done by Congress and its committees, the President 
having no further hand in the matter, 1 though he may send 
messages pressing Congress to vote for money for some purpose 
which he deems important. 

The business of raising money belongs to one* committee 
only, the standing committee of Ways and Means, consisting 
of nineteen members. Its chairman is always a leading man in 
the party which commands a majority in the House. This 
committee prepares and reports to the House the bills needed 
for imposing or continuing the various customs duties, excise 
duties, etc. The report of the Secretary has been referred by 
the House to this committee, but the latter does not necessarily 
base its bills upon or in any way regard that report. Neither 
does it in preparing them start from an estimate of the sums 
needed to support the public service. It does not, because it 
cannot: for it does not know what grants for the public ser¬ 
vice will be proposed by the spending committees, since the 
estimates submitted in the Secretary’s letter furnish no trust¬ 
worthy basis for a guess. It does not, for the further reason 
that the primary object of customs duties has for many years 
past been not the raising of revenue, but the protection of 
American industries by subjecting foreign products to a very 
high tariff. This tariff (futther raised in 1890 and 1897, altered 
in 1909, and reduced in 1913) brought in an income far exceeding 
the current needs of the government. Two-thirds of the war 
debt having been paid off, the fixed charges shrank to one- 
third of what they were when the war ended, yet this tariff 
remained with few modifications, surpluses constantly accu¬ 
mulating in the national treasury, until in 1890 a Pension Act 
was passed which increased expenditures so largely as almost 
to absorb even the growing surplus. The committee of Ways 
and Means had therefore had no motive for adapting taxation 
to expenditure. The former seemed likely to be always in 
excess while the protective tariff stood, and the protective 
tariff stood for commercial or political reasons unconnected 
with national finance. 2 Of recent finance it would be difficult 
to speak without entering on controversial ground. 

1 Now however the President has received by statute the power of examin¬ 
ing the estimates and making recommendations regarding them. 

2 For a long time surpluses were got rid of by paying off debt; but when finan¬ 
ciers began to hold that a certain portion of the debt ought to be kept on foot 
lor banking and currency purposes, much discussion arose as to how the accu- 



CHAP. XVII 


CONGRESSIONAL FINANCE 


179 


When the revenue bills come to be debated in committee of 
the whole House similar causes prevent them from being scru¬ 
tinized from the purely financial point of view. Debate turns 
on those items of the tariff which involve gain or loss to influ¬ 
ential groups. Little inquiry is made as to the amount needed 
and the adaptation of the bills to produce that amount and no 
more. It is the same with ways and means bills in the Sen¬ 
ate. Communications need not pass between the committees 
of either House and the Treasury. The person most respon¬ 
sible, the person who most nearly corresponds to an English 
Chancellor of the Exchequer, or a French Minister of Finance, 
is the chairman of the House committee of Ways and Means. 
But he stands in no official relation to the Treasury, and is 
not required to exchange a word or a letter with its staff. 
Neither, of course, can he count on a majority in the House. 
Though he is a leading man he is not a leader, i.e. he has no 
claim on the votes of his own party, many of whom may disap¬ 
prove of and cause the defeat of his proposals. This befell in 
1886, when the chairman of this committee, an able man, and 
perhaps, after the Speaker, the most considerable person in 
the Democratic majority, was beaten in his attempted reform 
of the tariff. 

The business of spending money used to belong to the com¬ 
mittee on Appropriations, but in 1883 a new committee, that 
on Rivers and Harbours, received a large field of expenditure; 
and in 1886 sundry other supply bills were referred to sun¬ 
dry standing committees. The committee on appropriations 
starts from, but does not adopt, the estimates sent in by the 
Secretary of the Treasury, for the appropriation bills it pre¬ 
pares usually make large and often reckless reductions in these 
estimates. The Rivers and Harbours committee proposes 
grants of money for what are called “internal improvements/’ 
nominally in aid of navigation, but practically in order to turn 
a stream of public money into the State or States where each 
“improvement” is to be executed. More money is wasted in 

mulating balance should be disposed of. The Pension Act, although primarily 
intended to gratify the survivors of the Northern armies in the Civil War, seems 
to have been also designed to so deplete the Treasury as to remove one reason 
for reducing the protective tariff. Since then pension expenditure has in¬ 
creased, military and naval expenditure has increased, and though the tariff 
has been raised and revenue from customs has grown, expenditure has some¬ 
times (as for instance in 1909) been in excess of revenue. 



180 


THE NATIONAL GOVERNMENT 


PART 1 


this way than what the parsimony of the appropriations com¬ 
mittee can save. Each of the other standing committees, 
including the committee on pensions, a source of infinite waste, 1 
proposes grants of money, not knowing nor heeding what is 
being proposed by other committees, and guided by the ex¬ 
ecutive no further than the members choose. All the expen¬ 
ditures recommended must be met by appropriation bills, but 
into their propriety the appropriations committee cannot inquire. 

Every revenue bill must, of course, come before the House; 
and the House, whatever else it may neglect, never neglects the 
discussion of taxation and money grants. These are discussed 
as fully as the pressure of work permits, and are often added 
to by the insertion of fresh items, which members interested 
in getting money voted for a particular purpose or locality 
suggest. These bills then go to the Senate, which forthwith 
refers them to its committees. The Senate committee on 
finance deals with the revenue-raising bills; the committee on 
appropriations with supply bills. Both sets then come before 
the whole Senate. Although it cannot initiate revenue-raising 
bills, the Senate long ago made good its claim to amend appro¬ 
priation bills, and does so freely, adding items and often raising 
the total of the grants. When the. bills go back to the House, 
the House usually rejects the amendments; the Senate adheres 
to them, and a Conference committee is appointed, usually con¬ 
sisting of three senators and three members of the House, by 
which a compromise is settled, hastily and in secret, and accepted, 
generally in the last days of the session, by a hard-pressed but 
reluctant House. Even as enlarged by this committee, the 
supply voted is often found inadequate, so a Deficiency bill is 
introduced in the following session, including a second series of 
grants to the departments. 

The European reader will ask how all this is or can be done 
by Congress without frequent communication from or to the 
executive government. There are such communications, for 
the ministers, anxious to secure appropriations adequate for 
their respective departments, talk to tha chairmen and appear 

1 The annual expenditure on pensions was in 1887, $75,000,000 (£15,000,000). 
Under the statute of 1890, it had risen in 1894 to $142,092,818, with 994,762 
pensioners on the roll, 39 years after the end of the War of Secession. In 
1912, 43 years after the war, it stood at $152,986,433. The total amount ex¬ 
pended in pensions for service in the Northern armies during the War of Se¬ 
cession alone had, in 1908, reached $3,533,593,025 (about £707,000,000). ' 



CHAP. XVII 


CONGRESSIONAL FINANCE 


181 


before the committees to give evidence as to departmental 
needs. But Congress does not look to them for guidance as in 
the early days it looked to Hamilton and Gallatin. If the 
House cuts down their estimates they turn to the Senate and 
beg it to restore the omitted items; if the Senate fail them, 
the only resource left is a Deficiency bill in the next session. 
If one department is so starved as to be unable to do its work, 
while another obtains lavish grants which invite jobbery or 
waste, it is the committees, not the executive, whom the people 
ought to blame. If, by a system of log-rolling, vast sums are 
wasted upon useless public works, no minister has any oppor¬ 
tunity to interfere, any right to protest. A minister cannot, as 
in England, bring Congress to reason by a threat of resignation, 
for it would make no difference to Congress if the whole cabinet 
were to resign, unless of course the congressmen most con¬ 
spicuously concerned should be so palpably in fault that the 
people could be roused to vigorous disapproval. 

What has been here stated may be summarized as follows : 

There is practically no connection between the policy of 
revenue raising and the policy of revenue spending, for these 
are left to different committees whose views may be opposed, 
and the majority in the House has no recognized leaders to 
remark the discrepancies or make one or other view prevail. 
In the Forty-ninth Congress a strong free-trader was chairman 
of the tax-proposing committee on Ways and Means, while a 
strong protectionist was chairman of the spending committee 
on Appropriations. 

There is no relation between the amount proposed to be 
spent in any one year, and the amount proposed to be raised. 
But for the fact that the high tariff has usually though not 
always produced a large annual surplus, financial breakdowns 
might have been frequent and serious. 

The knowledge and experience of the permanent officials 
either as regards the productivity of taxes, and the incidental 
benefits or losses attending their collection, or as regards the 
nature of various kinds of expenditure and their comparative 
utility, can be turned to account only by interrogating these 
officials before the committees. Their views are not stated in 
the House by a parliamentary chief, nor tested in debate by argu¬ 
ments addressed to him which he must there and then answer. 

Little check exists on the tendency of members to deplete 




182 


THE NATIONAL GOVERNMENT 


PART I 


the public treasury by securing grants for their friends or con¬ 
stituents, or by putting through financial jobs for which they 
are to receive some private consideration. If either the major¬ 
ity of the committee on Appropriations or the House itself 
suspects a job, the grant proposed may be rejected. But it is 
the duty of no one in particular to scent out a job, and to de¬ 
feat it by public exposure. 

The nation is sometimes puzzled by a financial policy varying 
from year to year, and controlled by no responsible leaders, and 
it feels less interest than it ought in congressional discussions, 
nor has it confidence in Congress . 1 

The result on the national finance is unfortunate. A thought¬ 
ful American publicist remarks, “So long as the debit side 
of the national account is managed by one set of men, and 
the credit side by another set, both sets working separately 
and in secret without public responsibility, and without inter¬ 
vention on the part of the executive official who is nominally 
responsible; so long as these sets, being composed largely of 
new men every two years, give no attention to business except 
when Congress is in session, and thus spend in preparing plans 
the whole time which ought to be spent in public discussion of 
plans already matured, so that an immense budget is rushed 
through without discussion in a week or ten days — just so 
long the finances will go from bad to worse, no matter by what 


1 The noteworthy fact that even the most thorough debates in Congress 
fail to awaken any genuine or active interest in the minds of the people has 
had its most striking illustrations in the course of our financial legislation, for 
though the discussions which have taken place in Congress upon financial 
questions have been so frequent, so protracted, and so thorough, engrossing 
a large part of the time of the House on their every recurrence, they seem in 
almost every instance to have made scarcely any impression upon the public 
mind. The Coinage Act of 1873, by which silver was demonetized, had been 
before the country many years ere it reached adoption, having been time and 
again considered by committees of Congress, time and again printed and dis¬ 
cussed in one shape or another, and having finally gained acceptance appar- 
ently by sheer persistence and importunity. The Resumption Act of 1875, too, 
had had a like career of repeated considerations by committees, repeated 
printings and a full discussion by Congress, and yet when the Bland Silver 
Bill of 1878 was on its way through the mills of legislation, some of the most 
prominent newspapers of the country declared with confidence that the Re¬ 
sumption Act had been passed inconsiderately and in haste; and several mem- 
f Tq?o rT, eSS had previousl y complained that the demonetization scheme 
ol 1873 had been pushed surreptitiously through the courses of its passage, 
Congress having been tricked into accepting it, doing it scarcely knew what.” 

Woodrow Wilson, Congressional Government, p. 148. This remark, how¬ 
ever, would not apply to the tariff debates of 1890, 1909, and 1913 



CHAP. XVII 


CONGRESSIONAL FINANCE 


183 


name you call the party in power. No other nation on earth 
attempts such a thing, or could attempt it without soon coming 
to grief, our salvation thus far consisting in an enormous in¬ 
come.” 

It may be replied to this criticism that the enormous in¬ 
come, added to the fact that the tariff is imposed for protection 
rather than for revenue, is not only the salvation of the United 
States Government under the present system, but also the 
cause of that system. Were the tariff framed with a view to 
revenue only, no higher taxes would be imposed than the 
public service required, and a better method of balancing the 
public accounts would follow. America is the only country in 
the world whose difficulty has mostly been not to raise money 
but to spend it. 1 But it is equally true that Congress is con¬ 
tracting lax habits, and ought to change them. 

How comes it, if all this be true, that the finances of America 
have been so flourishing, and in particular that the Civil War 
debt was paid off with such regularity and speed that the total 
public debt of $3,000,000,000 (£600,000,000) in 1865 had sunk 
in 1890 to $1,000,000,000 (£200,000,000) ? Does not so brilliant 
a result speak of a continuously wise and skilful management 
of the national revenue ? 

The swift reduction of the debt seems to have been due to the 
following causes : — 

To the prosperity of the country which, with one interval of 
trade depression, had for twenty-five years been developing its 
amazing natural resources so fast as to produce an amount of 
• wealth which was not only greater, but probably more widely dif¬ 
fused through the population, than in any other part of the world. 2 

To the spending habits of the people, who allow themselves 
luxuries such as the masses enjoy in no other country, and 


Lor twenty-eight years up to 1892, there had been surpluses, the smallest 
of $2,344,000 in 1874, the largest of $145,543,000 in 1882. The surplus for the 
year ending 30th June, 1890, was about $44,000,000. The receipts from customs 
alone were greater by about $48,000,000 in 1890 than in 1885. e o a 
revenue of the year ending June 30, 1892, was $425,000,000, and t e o a ex¬ 
penditure $415,000,000, the receipts from customs duties h ^ vl ^f ^ ecIm . ’ _ 

the expenditure, especially on pensions, having increased. In , an in sev 
eral other years since, there were deficits. 

2 In 1907 the total revenue of the National Government from all sources 
was $846,725,340, and in 1912, $992,249,230. The total expenditure was in 
1907, $762,488,753, and in 1912, $965,273,678. The total public interest bear¬ 
ing debt stood in 1908 at $963,776,770. 



184 


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PART 1 


therefore pay more than any other people in the way of indirect 
taxation. The fact that Federal revenue is mostly raised by 
customs and excise makes the people far less sensible of the 
pressure of taxation than they would be did they pay directly. 

To the absence, down till 1899, of the military and naval 
charges which press so heaviJy on European states. 

To the maintenance of an exceedingly high tariff at the 
instance of interested persons who have obtained the public 
ear and can influence Congress. It was the acceptance of the 
policy of Protection, rather than any deliberate conviction 
that the debt ought to be paid off, that caused the continuance 
of a tariff whose huge and constant surpluses enabled the debt 
to be reduced. 

Europeans, admiring and envying the rapidity with which 
the Civil War debt was reduced were in those years disposed to 
credit the Americans with brilliant financial skill. That, however, 
which was really admirable in the conduct of the American 
people was not their judgment in selecting particular methods 
for raising money, but their readiness to submit during and im¬ 
mediately after the war to unprecedentedly heavy taxation. 
The interests (real or supposed) of the manufacturing classes 
have caused the maintenance of the tariff then imposed ; nature, 
by giving the people a spending power which rendered the 
tariff marvellously productive, did the rest. 

Under the system of congressional finance here described 
America wastes millions annually. But her wealth is so great, 
her revenue so elastic, that she is not sensible of the loss. She 
has the glorious privilege of youth, the privilege of committing 
errors without suffering from their consequences. 




CHAPTER XVIII 


THE RELATIONS OF THE TWO HOUSES 

The creation by the Constitution of 1789 of two chambers in 
the United States, in place of the one chamber which existed 
under the Confederation, has been usually ascribed by Euro¬ 
peans to mere imitation of England; and one learned writer 
goes so far as to suggest that if England had possessed three 
chambers, like the States General of France, or four, like the 
Diet of Sweden, a crop of three-chambered or four-chambered 
legislatures would, in obedience to the example of happy and 
successful England, have sprung up over the world. There 
were, however, better reasons than deference to English prec¬ 
edents to justify the division of Congress into two houses and 
no more; and so many indubitable instances of such a defer¬ 
ence may be quoted that there is no need to hunt for others. 
Not to dwell upon the fact that there were two chambers in 
all but two 1 of the thirteen original States, the Convention of 
1787 had two solid motives for fixing on this number, a motive 
of principle and theory, a motive of immediate expediency. 

The chief advantage of dividing a legislature into two branches 
is that the one may check the haste and correct the mistakes 
of the other. This advantage is purchased at the price of some 
delay, and of the weakness which results from a splitting up 
of authority. If a legislature be constituted of three or more 
branches, the advantage is scarcely increased, the delay and 
weakness are immensely aggravated. Two chambers can be 
made to work together in a way almost impossible to more than 
two. As the proverb says, “Two’s company, three’s none.” 
If there be three chambers, two are sure to intrigue and likely 
to combine against the third. The difficulties of carrying a 
measure without sacrificing its unity of principle, of fixing 

1 Pennsylvania and Georgia; the former of which added a Senate in 1789 
the latter in 1790. See post , Chapter XL. on State Legislatures. 

185 


186 


THE NATIONAL GOVERNMENT 


PART I 


responsibility, of securing the watchful attention of the public, 
serious with two chambers, becomes enormous with three or 
more. 

To these considerations there was added the practical 
ground that the division of Congress into two houses supplied 
a means of settling the dispute which raged between the small 
and the large States. The latter contended for a representa¬ 
tion of the States in Congress proportioned to their respective 
populations, the former for their equal representation as sov¬ 
ereign commonwealths. Both were satisfied by the plan which 
created two chambers, in one of which the former principle, in 
the other of which the latter principle, was recognized. The 
country remained a federation in respect of the Senate, it became 
a nation in respect of the House: there was no occasion for a 
third chamber. 

The respective characters of the two bodies are wholly un¬ 
like those of the so-called upper and lower chambers of Europe. 
In Europe there is always a difference of political complexion 
generally resting on a difference in personal composition. There 
the upper chamber represents the aristocracy of the country, 
or the men of wealth, or the high officials, or the influence of the 
Crown and Court; while the lower chamber represents the 
multitude. Between the Senate and the House there is no 
such difference. Both equally represent the people, the whole 
people, and nothing but the people. The individual members 
come from the same classes of the community; though in 
the Senate, as it has more rich men (in proportion to numbers) 
than has the House, the influence of capital has latterly been 
more marked. Both have been formed by the same social 
influences; and the social pretensions of a senator expire with 
his term of office. Both are possessed by the same ideas, 
governed by the same sentiments, equally conscious of their 
dependence on public opinion. The one has never been, like 
the English House of Commons, a popular pet, the other never, 
like the English House of Lords, a popular bugbear. 

What is perhaps stranger, the two branches of Congress have 
not exhibited that contrast of feeling and policy which might 
be expected from the different methods by which they are 
chosen. In the House the large States are predominant: ten out 
of forty-eight (less than one-fourth) return an absolute majority 
of the 443 representatives. In the Senate these same ten 



chap, xviii THE RELATIONS OF THE TWO HOUSES 187 


States have only twenty members out of ninety-six, less than 
a fourth of the whole. In other words, these ten States are more 
than sixteen times as powerful in the House as they are in the 
Senate. But as the House has never been the organ of the large 
States, nor prone to act in their interest, so neither has the 
Senate been the stronghold of the small States, for American 
politics have never turned upon an antagonism between these 
two sets of commonwealths. Questions relating to States’ 
rights and the greater or less extension of the powers of the 
national government have played a leading part in the history 
of the Union. But although small States might be supposed 
to be specially zealous for States’ rights, the tendency to uphold 
them has been no stronger in the Senate than in the House. 
In one phase of the slavery struggle the Senate happened to 
be under the control of the slaveholders while the House was not; 
and then of course the Senate championed the sovereignty of 
the States. But this attitude was purely accidental, and disap¬ 
peared with its transitory cause. 

The real differences between the two bodies are due to the 
smaller size of the Senate, and the consequent greater facilities 
for debate, to the somewhat superior capacity of its members, 
to the habits which its executive functions form in individual 
senators, and have formed in the whole body. 

In Europe, where the question as to the utility of second 
chambers is actively canvassed, two objections are made to 
them, one that they deplete the first or popular chamber of 
able men, the other that they induce deadlocks and consequent 
stoppage of the wheels of government. On both arguments 
light may be expected from American experience. 

Although the Senate does draw off from the House many of 
its ablest men, it is not clear, paradoxical as the observation 
may appear, that the House would be much the better for re¬ 
taining those men. The faults of the House are mainly due, 
not to want of talent among individuals, but to its defective 
methods, and especially to the absence of leadership. These 
are faults which the addition of twenty or thirty able men would 
not cure. Some of the committees would be stronger, and so far 
the work would be better done. But the House as a whole would 
not (assuming its rules and usages to remain what they are now) 
be distinctly a greater power in the country. On the other hand, 
the merits of the Senate are largely due to the fact that it trains 



188 


THE NATIONAL GOVERNMENT 


PART I 


to higher efficiency the ability which it has drawn from the House, 
and gives that ability a sphere in which it can develop with better 
results. Were the Senate and the House thrown into one, the 
country might suffer more by losing the Senate than it would 
gain by improving the House, for the united body would have 
the qualities of the House and not those of the Senate. 

Collisions between the two Houses are frequent. Each is 
jealous and combative. Each is prone to alter the bills that 
come from the other; and the Senate in particular knocks 
about remorselessly those favourite children of the House, the 
appropriation bills. The fact that one House has passed a bill 
goes but a little way in inducing the other to pass it; the Senate 
would reject twenty House bills as readily as one. Dead¬ 
locks, however, disagreements over serious issues which stop 
the machinery of administration, are not common. They rarely 
cause excitement or alarm outside Washington, because the 
country, remembering previous instances, feels sure they will 
be adjusted, and knows that either House would yield were it 
unmistakably condemned by public opinion. The executive 
government goes on undisturbed, and the worst that can happen 
is the loss of a bill which may be passed some months later. Even 
as between the two bodies there is no great bitterness in these 
conflicts, because the causes of quarrel -do not lie deep. Some¬ 
times it is self-esteem that is involved, the sensitive self-esteem 
of an assembly. Sometimes one or other House is playing for 
a party advantage. That intensity which in the similar con¬ 
tests of Europe arises from class feeling is absent, because there 
is no class distinction between the two American chambers. Thus 
the country seems to be watching a fencing match rather than 
a combat a outrance. 

I dwell upon this substantial identity of character in the 
Senate and the House because it explains the fact, surprising 
to a European, that two perfectly co-ordinate authorities, neither 
of which has any more right than its rival to claim to speak 
for the whole nation, manage to get along together. Their 
quarrels are professional and oersonal rather than conflicts of 
adverse principles. The two bodies are not hostile elements in 
the nation, striving for supremacy, but servants of the same 
master, whose word of rebuke will quiet them. 

It must, however, be also remembered that in such countries 
as England, France, and Italy, the popular chamber stands in 



chap, xviii THE RELATIONS OF THE TWO HOUSES 189 


trery close relation with the executive government, which it has 
virtually installed and which it supports. A conflict between 
the two chambers in such countries is therefore a conflict to which 
the executive is a party, involving issues which may be of the 
extremest urgency; and this naturally intensifies the struggle. 
For the House of Lords in England or the Senate in Italy to 
resist a demand for legislation made by the ministry, who are 
responsible for the defence and peace of the country, and backed 
by the representative House, is a more serious matter than 
almost any collision between the Senate and the House can be in 
America. 1 

The United States is the only great country in the world 
(for the Australian Commonwealth is scarcely an exception) in 
which the two Houses are really equal and co-ordinate. Such 
a system could hardly work, and therefore could not last, if the 
executive were the creature of either or of both, nor unless both 
were in touch with the sovereign people, although that touch is, 
owing to the system of nominations (see Part III post), not so 
close as it appears to be. 

When each chamber persists in its own view, the regular pro¬ 
ceeding is to appoint a committee of conference, usually con¬ 
sisting of three members of the Senate and three of the House, 
sometimes however of a larger number. These six meet in 
secret, and generally settle matters by a compromise, which 
enables each side to retire with honour. When appropriations 
are involved, a sum intermediate between the smaller one which 
the House proposes to grant and the larger one desired by the 
Senate is adopted. If no compromise can be arranged, and if the 
action of the President, who may conceivably give his moral 
support (backed by the possibility of a veto) to one or another 
Chamber, does not intervene, the conflict continues till one side 
yields or it ends by an adjournment, which of course involves the 
failure of the measure disagreed upon. The House at one time 
tried to coerce the Senate into submission by adding “riders,” 
as they are called, to appropriation bills, i.e. annexing or “tack¬ 
ing” (to use the English expression) pieces of general legislation 
to bills granting sums of money. This puts the Senate in the 

1 Of course a case may be imagined in which the President should ask for 
legislation, as Lincoln did during the war, and one House of Congress should 
grant, the other refuse, the Acts demanded. But such cases are less likely to 
occur in America than in Europe under the Cabinet system. 



190 


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PART 1 


dilemma of either accepting the unwelcome rider, or rejecting 
the whole bill, and thereby withholding from the executive the 
funds it needs. This happened in 1855 and 1856. However, 
the Senate stood firm, and the House gave way. The device 
had previously been attempted (in 1849) by the Senate in tack¬ 
ing a pro-slavery provision to an appropriation bill which it was 
returning to the House, and it was revived by both Houses 
against President Andrew Johnson in 1867. 

In a contest the Senate usually, though not invariably, gets 
the better of the House. It is smaller, and can therefore more 
easily keep its majority together; its members are more ex¬ 
perienced ; and it has the great advantage of being permanent, 
whereas the House is a transient body. The Senate can hold 
out, because if it does not get its way at once against the House, 
it may do so when a new House comes up to Washington. 
The House cannot afford to wait, because the hour of its own 
dissolution is at hand. Besides, while the House does not know 
the Senate from inside, the Senate, many of whose members 
have sat in the House, knows all the^ins and outs” of its rival, 
can gauge its strength and play upon its weakness. 



CHAPTER XIX 


GENERAL OBSERVATIONS ON CONGRESS 

After this inquiry into the composition and working of each 
branch of Congress, it remains for me to make some observa¬ 
tions which apply to both Houses, and which may tend to indi¬ 
cate the features that distinguish them from the representative 
assemblies of the Old World. The European reader must bear 
in mind three points which, in following the details of the last 
few chapters, he may have forgotten. The first is that Congress 
is not, like the Parliaments of England, France, and Italy, a 
sovereign assembly, but is subject to the Constitution, which 
only the people can change. The second is, that it neither 
appoints nor dismisses the executive government, which springs 
directly from popular election. The third is, that its sphere 
of legislative action is limited by the existence of nearly fifty 
governments in the several States, whose authority is just as 
well based as its own, and cannot be curtailed by it. 

I. The choice of members of Congress is locally limited by 
law and by custom. Under the Constitution every representa¬ 
tive and every senator must when elected be an inhabitant 
of the State whence he is elected. Moreover, State law has in 
many and custom practically in all States, established that a 
representative must be resident in the congressional district 
which elects him. 1 The only exceptions to this practice occur 
in large cities where occasionally a man is chosen who lives in 
a different district of the city from that which returns him; 
but such exceptions are rare. 2 This restriction, inconvenient 

1 The best legal authorities hold that a provision of this kind is invalid, 
because State law has no power to narrow the qualifications for a Federal 
representative prescribed by the Constitution of the United States. And Con¬ 
gress would probably £0 hold if the question arose in a case brought before it 
as to a disputed election. So far as I have been able to ascertain, the point 
has never arisen for determination. 

2 1 have however known of one or two cases in New England and in the city 
of New York in which persons not resident in the district have been elected. 
In New York on one occasion it was strongly urged against a candidate that 

191 


192 


THE NATIONAL GOVERNMENT 


PART I 


as it is both to candidates, whose field of choice in seeking a 
constituency it narrows, and to constituencies, whom it debars 
from choosing persons, however eminent, who do not reside in 
their midst, seems to Americans so obviously reasonable that 
few persons, even in the best educated classes, will admit its 
policy to be disputable. In what are we to seek the causes of 
this opinion ? 

First. In the existence of States, originally separate political 
communities, still for many purposes independent, and accus¬ 
tomed to consider the inhabitant of another State as almost a 
foreigner. A New Yorker, Pennsylvanians would say, owes 
allegiance to New York; he cannot feel and think as a citizen 
of Pennsylvania, and cannot therefore properly represent 
Pennsylvanian interests. This sentiment has spread by a sort 
of sympathy, this reasoning has been applied by a sort of analogy, 
to the counties, the cities, the electoral districts of the State itself. 
State feeling has fostered local feeling; the locality deems no 
man a fit representative who has not by residence in its limits, 
and by making it his political home, the place where he exercises 
his civic rights, become soaked with its own local sentiment. 

Secondly. Much of the interest felt in the proceedings of 
Congress relates to the raising and spending of money. Changes 
in the tariff may affect the industries of a locality; or a locality 
may petition for an appropriation of public funds to some 
local public work, the making of a harbour, or the improvement 
of the navigation of a river. In both cases it is thought that 
no one but an inhabitant can duly comprehend the needs or 
zealously advocate the demands of a neighbourhood. 

Thirdly. Inasmuch as no high qualities of statesmanship 
are expected from a congressman, a district would think it a 
slur to be told that it ought to look beyond its own borders for 
a representative; and as the post is a paid one, the people feel 
that a good thing ought to be kept for one of themselves rather 
than thrown away on a stranger. It is by local political work, 
organizing, canvassing, and haranguing, that a party is kept 
going : and this work must be rewarded. 

A perusal of the chapter of the Federalist, which argues 
that one representative for 30,000 inhabitants will sufficiently 
satisfy republican needs, suggests another reflection. The 

the side of the street in which he lived was not within the ward he was standing 
for. Sometimes a man moves into a district in order to be chosen there. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 193 


writer refers to some who held a numerous representation to 
be a democratic institution, because it enabled every small dis¬ 
trict to make its voice heard in the national Congress. Such 
representation then existed in the State legislatures. Evi¬ 
dently the habits of the people were formed by these State legis¬ 
latures, in which it was a matter of course that the people of 
each township or city sent one of themselves to the assembly 
of the State. When they came to return members to Con¬ 
gress, they followed the same practice. A stranger had no 
means of making himself known to them and would not think 
of offering himself. That the habits of England are different 
may be due, so far as the eighteenth century is concerned, to 
the practice of borough-mongering, under which candidates 
unconnected with the place were sent down by some influen¬ 
tial person, or bought the seat from the corrupt corporation or 
the limited body of freemen. Thus the notion that a stranger 
might do well enough for a borough grew up, while in counties 
it remained, till 1885, a maxim that a candidate ought to own 
land in the county — the old law required a freehold qualifi¬ 
cation somewhere 1 — or ought to live in, or ought at the very 
least (as I once heard a candidate, whose house lay just out¬ 
side the county for which he was standing, allege on his own 
behalf) to look into the county from his window while shaving 
in the morning. 2 The English practice might thus seem to 


1 The old law (9 Anne, c. 5) required all members to possess a freehold quali¬ 
fication somewhere. All property qualifications were abolished by statute in 
1858. Of the last five Prime Ministers who have sat in the House of Com¬ 
mons none has represented his place of residence. 

2 The English habit of allowing a man to stand for a place with which he is 
personally unconnected would doubtless be favoured by the fact that many 
ministers are necessarily members of the House of Commons. The inconven¬ 
ience of excluding a man from the service of the nation because he could not 
secure his return in the place of his residence would be unendurable. No such 
reason exists in America, because ministers cannot be members of Congress. 
In France, Germany, Italy, and in Canada the practice resembles that of 
England, i.e. many members sit for places where they do not reside, though 
a candidate residing in the place he stands for has a certain advantage. 

It is remarkable that the original English practice required the member to 
be a resident of the county or borough which returned him to Parliament. 
This is said to be a requirement at common law (witness the words de comi- 
tatu tuo” in the writ for the election addressed to the sheriff); and was ex¬ 
pressly enacted by the statute 1 Henry V. cap. 1. But already in the time of 
Elizabeth the requirement was not enforced ; and in 1681 Lord Chief-Justice 
Pemberton ruled that “little regard was to be had to that ancient statute 
1 Henry V. forasmuch as common practice hath been ever since to the contrary. 
The statute was repealed by 14 Geo. III. cap. 50. — See Anson, Law and Cus- 


O 



194 


THE NATIONAL GOVERNMENT 


PART I 


be an exception due to special causes, and the American prac¬ 
tice that which is natural to a free country, where local self- 
government is fully developed and rooted in the habits of the 
people. It is from their local government that the political 
ideas of the American people have been formed: and they 
have applied to their State assemblies and their national as¬ 
sembly the customs which grew up in the smaller area. 1 

These are the best explanations I can give of a phenomenon 
which strikes Europeans all the more because it exists among 
a population more unsettled and migratory than any in the 
Old World. But they leave me still surprised at this strength 
of local feeling, a feeling not less marked in the new regions 
of the Far West than in the venerable commonwealths of 
Massachusetts and Virginia. Fierce as is the light of criticism 
which beats upon every part of that system, this point remains 
uncensured, because assumed to be part of the order of nature. 

So far as the restriction to residents in a State is concerned. 
it is intelligible. The senator was originally a sort of am¬ 
bassador from his State. He is chosen by the legislature or 
collective authority of his State. He cannot well be a citizen 
of one State and represent another. Even a representative 
in the House from one State who lived in another might be per¬ 
plexed by a divided allegiance, though there are groups of 
States, such as those of the north-west, whose great industrial 
interests are substantially the same. But what reason can 
there be for preventing a man resident in one part of a State 
from representing another part, a Philadelphian, for instance, 
from being returned for Pittsburg, or a Bostonian for Pittsfield 

tom of the Constitution, vol. i. p. 83 ; Stubbs, Constit. Hist., vol. iii. p. 424. Dr. 
Stubbs observes that the object of requiring residence in early times was to 
secure “that the House of Commons should be a really representative body.” 
Mr. Hearn (Government of England) suggests that the requirement had to be 
dropped because it was hard to find country gentlemen (or indeed burgesses) 
possessing the legal knowledge and statesmanship which the constitutional 
struggles of the sixteenth and seventeenth centuries demanded. 

1 When President Garfield was one of the leaders of the House of Representa¬ 
tives it happened that his return for the district in which he resided became 
doubtful, owing to the strength of the Democratic party there. His friend 
Mr. John Hay (to whom I owe the anecdote), anxious to make sure that he should 
somehow be returned to the House, went into the adjoining district to sound 
the Republican voters there as to the propriety of running Mr. Garfield for 
their constituency. They laughed at the notion, “ Why, he don’t live in our 
deestrict.” I have heard of a case in which a member of Congress having 
after his election gone to live in a neighbouring district, was thereupon com¬ 
pelled by the pressure of public opinion to resign his seat. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 195 


in the west of Massachusetts ? In Europe it is not found that 
a member is less active or successful in urging the local inter¬ 
ests of his constituency because he does not live there. He is 
often more successful, because more personally influential or 
persuasive than any resident whom the constituency could 
supply; and in case of a conflict of interests he always feels 
his efforts to be owing first to his constituents, and not to the 
place in which he happens to reside. 

The mischief is twofold. Inferior men are returned, be¬ 
cause there are many parts of the country which do not grow 
statesmen, where nobody, or at any rate nobody desiring to 
enter Congress, is to be found above a moderate level of polit¬ 
ical capacity. And men of marked ability ancl zeal are pre¬ 
vented from forcing their way in. Such men are produced 
chiefly in the great cities of the older States. There is not 
room enough there for nearly all of them, but no other doors 
to Congress are open. Boston, Chicago, New York, Philadel¬ 
phia, could furnish six or eight times as many good mem¬ 
bers as there are seats in these cities. As such men cannot 
enter from their place of residence, they do not enter at all, 
and the nation is deprived of the benefit of their services. 
Careers are moreover interrupted. A promising politician 
may lose his seat in his own district through some fluctuation 
of opinion, or perhaps because he has offended the local wire¬ 
pullers by too much independence. Since he cannot find a seat 
elsewhere he is stranded ; his political life is closed, while other 
young men inclined to independence take warning from his fate. 
Changes in the State laws might not remove the evil, for the 
habit of choosing none but local men is rooted so deeply that it 
might probably long survive the abolition of a restrictive law, 
and it is just as strong in States where no such law exists. 1 

II. Every senator and representative receives a salary at 
present fixed at $7500 per annum, besides an allowance (called 
mileage) of 20 cents (lOd.) per mile for travelling expenses for 
one journey to and from Washington, $1500 for clerk hire, and a 
sum for stationery. The salary is looked upon as a matter of 
course. It was not introduced for the sake of enabling working 
men to be returned as members, but on the general theory that 

1 In Maryland, a State almost divided into two parts by Chesapeake Bay, it 
has been the practice that one of the two senators should be chosen from the 
residents east of the bay, the other from those of the western shore. 




196 


THE NATIONAL GOVERNMENT 


PART I 


all public work ought to be paid for. 1 The reasons for it are 
stronger than in England or France, because the distance to 
Washington from most parts of the United States is so great, 
and the attendance required there so continuous, that a man 
cannot attend to his profession or business while sitting in 
Congress. If he loses his livelihood in serving the community, 
the community ought to compensate him, not to add that the 
class of persons whose private means put them above the need 
of a lucrative calling, or of compensation for interrupting it, is 
comparatively small even now, and hardly existed when the 
Constitution was framed. Cynics defend the payment of con¬ 
gressmen on another ground, viz. that “they would steal 
worse if they didn’t get it,” and would make politics, as Napo¬ 
leon made war, support itself. Be the thing bad or good, it is 
at any rate necessary, so that no one talks of abolishing it. 
For that reason its existence furnishes no argument for its 
introduction into a small country with a large leisured and 
wealthy class. In fact, the conditions of European countries 
are so different from those of America that one must not cite 
American experience either for or against the remuneration of 
legislative work. I do not believe that the practice works ill 
by preventing good men from entering politics, for they feel 
no more delicacy in accepting their $7500 than an English 
duke does in drawing his salary as a secretary of state. It 
may strengthen the tendency of members to regard themselves 
as mere delegates, but that tendency has other and deeper 
roots. It contributes to keep up a class of professional poli¬ 
ticians, for the salary, though small in comparison with the 
incomes earned by successful merchants or lawyers, is a prize 
to men of the class whence professional politicians mostly 
come. But those European writers who describe it as the 
formative cause of that class are mistaken. That class would 
have existed had members not been paid, would continue to 
exist if payment were withdrawn. On the other hand, the 
benefit which Europeans look for from the payment of legis¬ 
lators, viz. the introduction of a large number of representative 
working men, has hitherto been little desired and even less 
secured. Few such persons appear as candidates in America; 

1 Benjamin Franklin argued strongly in the Convention of 1787 against this 
theory, but found little support. See his remarkable speech in Mr. John Bige- 
low’s Life of Franklin, vol, iii, p. 389, 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 19? 


and until recently the working class did not deem itself, nor 
think of acting as, a distinct body with special interests. 1 
^ III. A congressman’s tenure of his place, though tending 
to grow longer, is still usually short. Senators are sometimes 
returned for two, four, or (in a few of the older States) even for 
five successive terms by the legislatures of their States, although 
it may befall even the best of them to be thrown out by a change 
in the balance of parties, or by the intrigues of an opponent. 
But a member of the House can seldom feel safe in the saddle. 
If he is so eminent as to be necessary to his party, or if he 
maintains intimate relations with the leading local wire-pullers 
of his district, he may in the eastern and middle, and still 
more in the southern States, hold his ground for four or five 
Congresses, i.e. for eight or ten years. Few do more than this. 
In the West a member is fortunate if he does even this. Out 
there a seat is regarded as a good thing which ought to go 
round. It has a salary. It sends a man, free of expense, for 
two winters and springs to Washington and lets him and his 
wife and daughters see something of the fine world there. 
Local leaders cast sheep’s eyes at the seat, and make more or 
less open bargains between themselves as to the order in which 
they shall enjoy it. So far from its being a reason for re-elect¬ 
ing a man that he has been a member already, it was, and is still 
in parts of the West, a reason for passing him by, and giving 
somebody else a turn. Rotation in office, dear to the Demo¬ 
crats of Jefferson’s school a century ago, still charms the less 
educated, who see in it a recognition of equality, and have no 
sense of the value of special knowledge or training. They 
like it for the same reason that the democrats of Athens liked 
the choice of magistrates by lot. It is a recognition and appli¬ 
cation of equality. An ambitious congressman is therefore 
forced to think day and night of his re-nomination, and to 
secure it not only by procuring, if he can, grants from the 
Federal treasury for local purposes, and places for the relatives 
and friends of the local wire-pullers who control the nominat¬ 
ing conventions, but also by sedulously “nursing” the con¬ 
stituency during the vacations. No habit could more effectu¬ 
ally discourage noble ambition or check the growth of a class 

1 Payment is the rule in the British self-governing colonies. In France and 
some at least of the German states (though not in the Reichstag) representa¬ 
tives are paid. In Italy they receive no salary, but a free pass over the railroads. 



198 


THE NATIONAL GOVERNMENT 


PART 


of accomplished statesmen. There are few walks of life in 
which experience counts for more than it does in parliamentary 
politics. It is an education in itself, an education in which 
the quick-witted western American would make rapid progress 
were he suffered to remain long enough at Washington. At 
present he is not suffered, for nearly one-half of each successive 
house has usually consisted of new men, while the old members 
are too much harassed by the trouble of procuring their re- 
election to have time or motive for the serious study of political 
problems. This is what comes of the notion that politics is 
neither a science, nor an art, nor even an occupation, like farm¬ 
ing, or store-keeping, in which one learns by experience, but a 
thing that comes by nature, and for which one man of com¬ 
mon sense is as fit as another. 1 

IV. The last-mentioned evil is aggravated by the short 
duration of a Congress. Short as it seems, the two years’ term 
was warmly opposed, when the Constitution was framed, as 
being too long. 2 The constitutions of the several States, 
framed when they shook off the supremacy of the British 
Crown, all fixed one year, except the ultra-democratic Connect¬ 
icut and Rhode Island, where under the colonial charters a 
legislature met every six months, and South Carolina, which 
had fixed two years. So essential to republicanism was this 
principle deemed, that the maxim “where annual elections 
end tyranny begins” had passed into a proverb; and the 
authors of the Federalist were obliged to argue that the limited 
authority of Congress, watched by the executive on one side, 
and the State legislatures on the other, would prevent so long 
a period as two years from proving dangerous to liberty, while 
it was needed in order to enable the members to master the laws 
and understand the conditions of different parts of the Union. 
At present the two years’ term is justified on the ground that 
it furnishes a proper check on the President by interposing 
an election in the middle of his term. One is also told that 
these frequent elections are necessary to keep up popular in¬ 
terest in current politics, nor do some fail to hint that the 
temptations to jobbing would overcome the virtue of members 

1 In recent years, a tendency to re-elect members seems to be growing. 

2 In the Massachusetts Convention of 1788, when this question was being dis¬ 
cussed, ^ General Thomson then broke out into the following pathetic apos¬ 
trophe, O my country, never give up your annual elections : young men, never 
give up your jewel.’ He apologized for his zeal.” — Elliot’s Debates , vol. ii. p. lb, 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 199 


who had a longer term before them. Where American opinion 
is unanimous, it would be presumptuous for a stranger to dis¬ 
sent. Yet the remark may be permitted that the dangers orig¬ 
inally feared have proved chimerical. There is no country 
whose representatives are more dependent on popular opinion, 
more ready to trim their sails to the least breath of it. The 
public acts, the votes, and speeches of a member from Oregon 
or Texas can be more closely watched by his constituents than 
those of a Virginian member could be watched in 1789. 1 And, 
as the frequency of elections involves inexperienced members, 
the efficiency of Congress suff ers, j 

V. The numbers of the two American houses seem small to a 
European when compared on the one hand with the population 
of the country, on the other with the practice of European states. 
The Senate has 96 members against the British House of Lords 
with over 600, and the French Senate with 300. The House 
has 443 against the British House of Commons with 670, 
and the French and Italian Chambers with 584 and 508 re¬ 
spectively. 

The Americans, however, doubt whether both their Houses 
have not already become too large. They began with 26 in 
the Senate, 65 in the House, numbers then censured as too 
small, but which worked well, and gave less encouragement to 
idle talk and vain display than the crowded halls of to-day. 
The inclination of wise men is to try to diminish further increase 
when the number of 400 has been reached, for they perceive that 
the House already suffers from disorganization, and fear that a 
much larger one would prove unmanageable. 2 


1 Of course his conduct in committee is rarely known, but I doubt whether 
the shortness of the term makes him more scrupulous. 

2 There is force in the following observations which I copy from the 54th and 
57th numbers of the Federalist :— “A certain number at least seems necessary 
to secure the benefits of free consultation and discussion, and to guard against 
too easy a combination for improper purposes; as on the other hand, the num¬ 
ber ought to be kept within a certain limit in order to avoid the confusion and 
intemperance of a multitude. In all very numerous assemblies, of whatever 
characters composed, passion never fails to wrest the sceptre from reason. Had 
every Athenian citizen been a Socrates, every Athenian assembly would still 
have been a mob. . . . In all legislative assemblies, the greater the number 
comprising them may be, the fewer will be the men who will in fact direct their 
proceedings. The larger the number, the greater will be the proportion of 
members of limited information and of weak capacities. Now it is precisely 
on characters of this description that the eloquence and address of the few are 
known to act with all their force. In the ancient republics where the whole 
body of the people assembled in person, a single orator, or an artful statesman, 





200 


THE NATIONAL GOVERNMENT 


PART I 


VI. American congressmen are more assiduous in their 
attendance than the members of most European legislatures. 
The great majority not only remain steadily at Washington 
through the session, but are usually to be found in the Capitol, 
often in their Chamber itself, while a sitting lasts. There is 
therefore comparatively little trouble in making the quorum 
of one-half, 1 except when the minority endeavours to prevent 
its being made, whereas in England the House of Lords, whose 
quorum is three, has seldom thirty peers present, and the House 
of Commons often finds a difficulty, especially during the din¬ 
ner hour, in securing its modest quorum of forty. 2 This require¬ 
ment of a high quorum, which is prescribed in the Constitution, 
has doubtless helped to secure a good attendance. Other causes 
are the distance from Washington of the residences of most 
members, so that it is not worth while to take the journey 
home for a short sojourn, and the fact that very few attempt 
to carry on any regular business or profession while the session 
lasts. Those who are lawyers, or merchants, or manufacturers, 
leave their work to partners; but many are politicians and 
nothing else. In Washington, a city without commerce or 
manufactures, political or semi-political intrigue is the only 
gainful occupation possible; for the Supreme Court practice 
is conducted almost entirely by lawyers coming from a distance. 
The more democratic a country is, so much the more regular is 
the attendance, so much closer the attention to the requests of 
constituents which a member is expected to render. 3 Apart 

was generally seen to rule with as complete a sway as if a sceptre had been 
placed in his single hand. On the same principle the more multitudinous a 
representative assembly may be rendered, the more it will partake of the in¬ 
firmities incident to collective meetings of the people. Ignorance will be the 
dupe of cunning, and passion the slave of sophistry and declamation. The 
people can never err more than in supposing that by multiplying their repre¬ 
sentatives beyond a certain limit they strengthen the barrier against the 
government of a few. Experience will for ever admonish them that, on the 
contrary, after securing a certain number for the purposes of safety , of local 
information, and of diffusing sympathy ‘vith the whole society, they will counteract 
their own views by every addition to their representatives.” 

It is true that the House of Commons with 670 members has not been found 
unmanageable. The number present, however, rarely exceeds 450 ; and there 
is sitting accommodation on the floor for only 360. 

1 Though sometimes the sergeant-at-arms is sent round Washington with a 
carriage to fetch members down from their residences to the Capitol. 

2 Oliver Cromwell’s House of 360 members, including 30 from Scotland and 
30 from Ireland, had a quorum of 60. 

8 Before the Reform Bill of 1832 there were rarely more than 200 members 
present in the House of Commons, -and it usually sat for two or three hours 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 201 


from that painful duty of finding places for constituents which 
consumes so much of a congressman’s time, his duties are not 
heavier than those of a member of the English Parliament who 
desires to keep abreast of current questions. The sittings are 
neither so long nor so late as those of the House of Commons; 
the questions that come up not so multifarious, the blue books 
to be read less numerous, the correspondence (except about 
places) not more troublesome. The position of senator is more 
onerous than that of a member of the House, not only because 
his whole State, and not merely a district, has a direct claim 
upon him, but also because, as one of a small body, he incurs 
a larger individual responsibility, and sits upon two or more 
committees instead of on one only. 

VII. The want of opportunities for distinction in Congress is 
one of the causes which make a political career unattractive to 
most Americans. 1 It takes a new member at least a session to 
learn the procedure of the House. Full dress debates are rare, 
newspaper reports of speeches delivered are curt and little read. 
The most serious work is done in committees; it is not known 
to the world, and much of it results in nothing, because many 
bills which a committee has considered are perhaps never even 
voted on by the House. A place on a good House committee 
is to be obtained by favour, and a high-spirited man might find 
it hard to secure it. Ability, tact, and industry make their 
way in the long run in Congress, as they do everywhere else. 
But in Congress there is, for most men, no long run. Only 
very strong local influence, or some remarkable party service 
rendered, will enable a member to keep his seat through three or 
four successive congresses. Nowhere therefore does the zeal 
of a young politician sooner wax cold than in the House of 
Representatives. Unfruitful toil, the toil of turning a crank 
which does nothing but register its own turnings, or of writing 
contributions which an editor steadily rejects, is of all things 
the most disheartening. It is more disheartening than the 
non-requital of merit; for that at least spares the self-respect 
of the sufferer. Now toil for the public is usually unfruitful 
in the House of Representatives, indeed in all Houses. But 

only in each day. One of the members for Hampshire, about 1820, sat for 
thirteen years, being in perfect health, and was only thrice in the House. Nor 
was this deemed a very singular case. 

1 See also Chapter LVIII. post, Vol. II. 




202 


THE NATIONAL GOVERNMENT 


PART I 


toil for the pecuniary interests of one’s constituents and friends 
is fruitful, for it obliges people, it wins the reputation of energy 
and smartness, it has the promise not only of a re-nomination, 
but of that possible seat in the Senate which is the highest 
ambition of the congressman. Power, fame, perhaps even 
riches, sit upon that pinnacle. But the thin spun life is usually 
slit before the fair guerdon has been found. Few young men 
of high gifts and fine tastes look forward to entering public 
life, for the probable disappointments and vexations of a life 
in Congress so far outweigh its attractions that nothing but 
exceptional ambition or a strong sense of public duty suffices to 
draw such men into it. Law, education, literature, the higher 
walks of commerce, finance, or railway work, offer a better 
prospect of enjoyment or distinction. 

Inside Washington, the representative is dwarfed by the 
senator and the Federal judges. Outside Washington he enjoys 
no great social consideration, 1 especially in the Northern States, 
for in the South his position retains some of its old credit. 
His opinion is not quoted with respect. He seems to move 
about under a prima facie suspicion of being a jobber, and to 
feel that the burden of proof lies on him to show that the cur¬ 
rent jests on this topic do not apply to him. Rich men there¬ 
fore do not seek, as in England, to enter the legislature in order 
that they may enter society. They will get no entree which 
they could not have secured otherwise. Nor is there any 
opportunity for the exercise of those social influences which tell 
upon members, and still more upon members’ wives and daugh¬ 
ters, in European legislatures, It may of course be worth while 
to “capture” a particular senator, and for that purpose to begin 
by capturing his wife. But the salon plays no part in American 
public life. 

The country does not go to Congress to look for its presiden¬ 
tial candidates as England looks to Parliament for its prime 
ministers. The opportunities by which a man can win distinc¬ 
tion there are few. He does not make himself familiar to the 
eye and ear of the world. Congress, in short, is not a focus of 

1 A few years ago an eminent Englishman, visiting a college for women in 
New England, and wishing to know something of the social standing of the 
students, remarked, “I suppose you have a good many young ladies here be¬ 
longing to the best families, daughters of members of Congress and so forth ?** 
The question excited so much amusement that it was repeated to me long after¬ 
wards not only as an instance of English ignorance but as a merry jest. 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 203 


political life as are the legislatures of France, Italy, and Eng¬ 
land. Though it has become more powerful against the several 
States than it was formerly, though it has extended its arms in 
every direction, and sometimes encroached upon the executive, 
it has not become more interesting to the people, nor strength¬ 
ened its hold on their respect and affection. 

VIII. Neither in the Senate nor in the House are there any 
recognized leaders. There is no ministry, no ex-ministry lead¬ 
ing an opposition, no chieftains at the head of definite groups 
who follow their lead, as the Irish Nationalist members in the 
British Parliament followed Mr. Parnell, and a large section 
in the French and German chambers followed M. Clemenceau 
and Dr. Windthorst. So too, there did not exist, until 1900, a 
regularly working agency for securing either that members shall 
be apprised of the divisions to be expected, or that they should 
vote in those divisions in a particular way. 

To any one familiar with the methods of the English Parlia¬ 
ment this seems incomprehensible. How, he asks, can business 
go on at all, how can each party make itself felt as a party 
with neither leader nor Whips ? 

I have mentioned the Whips. Let me say a word on this 
vital, yet even in England little appreciated, part of the ma¬ 
chinery of constitutional government. Each party in the 
House of Commons has, besides its leaders, a member of the 
House nominated by the chief leader as his aide-de-camp, and 
called the whipper-in, or, for shortness, the whip. The whip’s 
duties are (1) to inform every member belonging to the party 
when an important division may be expected, and if he sees 
the member in or about the House, to keep him there until the 
division is called; (2) to direct the members of his own party 
how to vote; (3) to obtain pairs for them if they cannot be 
present to vote; (4) to “tell,” i.e. count the members in every 
party division; (5) to “keep touch” of opinion within the 
party, and convey to the leader a faithful impression of that 
opinion, from which the latter can judge how far he may count 
on the support of his whole party in any course he proposes to 
take. A member in doubt how he shall vote on a question 
with regard to which he has no opinion of his own, goes to the 
whip for counsel. A member who without grave cause stays 
away unpaired from an important division to which the whip 
has duly summoned him is guilty of a misdemeanour only less 



204 THE NATIONAL GOVERNMENT part i 

flagrant than that of voting against his party. A ministerial 
whip is further bound to “keep a house,” i.e. to secure that 
when government business is being considered there shall al¬ 
ways be a quorum of members present, and of course also to 
keep a majority, i.e. to have within reach a number of support¬ 
ers sufficient to give the ministry a majority on any ministerial 
division. 1 Without the constant presence and activity of 
the ministerial whip the wheels of government could not go 
on for a day, because the ministry would be exposed to the 
risk of casual defeats which would destroy their credit and 
might involve their resignation. Similarly the Opposition, and 
any third or fourth party, find it necessary to have their whip 
or whips, because it is only thus that they can act as a party, 
guide their supporters, and bring their full strength to bear on 
a division. Hence when a new party is formed, its first act, 
that by which it realizes and proclaims its existence, is to name 
whips, to whom its adherents may go for counsel, and who 
may in turn receive their suggestions as to the proper strategy 
for the party to adopt. 2 So essential are these officers to the 
discipline of English parliamentary armies that an English 
politician’s first question when he sees Congress is, “Where 
are the whips?” his next, “How in the world do you get on 
without them?” 

The answer to this question is threefold. Whips are not so 
necessary at Washington as at Westminster. A sort of sub¬ 
stitute for them has been devised. Congress does to some ex¬ 
tent suffer from the inadequacy of the substituted device. 3 


1 That which was at one time the chief function of the ministerial whip, viz. 
to pay members for the votes they gave in support of the government, has 
been extinct for a century and a half. He is still, however, the recognized organ 
for handling questions of political patronage, and is therefore called the Patron¬ 
age Secretary to the Treasury. People who want places for their friends — there, 
are now extremely few — or titles for themselves — these are more numerous and 
eagerly desired — still address their requests to him, which he communicates 
to the prime minister with his opinion as to whether the applicant’s public 
or party services justify the request. 

2 Even parties formed with a view to particular, and probably transitory 
issues, appoint one or more of their members as whips, because they could 
not otherwise act with that effect which only habitual concert gives. Each 
party has its whips in the House of Lords also, but as divisions there have less 
political significance their functions are.less important. 

3 1 allow the passage which follows to' stand unaltered, because it describes 
the state of things which existed when this book was first written and for 
some time afterwards. In 1900, however, whips were introduced, the congres¬ 
sional caucus of each party in the House choosing one. The duty of the Whip 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 205 


A division in Congress has not the importance it has in the 
House of Commons. There it may throw out the ministry. 
In Congress it never does more than affirm or negative some 
particular bill or resolution. Even a division in the Senate 
which involves the rejection of a treaty or of an appointment 
to some great office, does not disturb the tenure of the execu¬ 
tive. Hence it is not essential to the majority that its full 
strength should be always at hand, nor has a minority party 
any great prize set before it as the result of a successful vote. 

Questions, however, arise in which some large party interest 
is involved. There may be a bill by which the party means to 
carry out its main views of policy, or perhaps to curry favour 
with the people, or a resolution whereby it hopes to damage a 
hostile executive. In such cases it is important to bring up 
every vote. Accordingly at the beginning of every Congress a 
caucus committee is elected by the majority, and it becomes the 
duty of the chairman and secretary of this committee (to whom, 
in the case of a party bill supported by the majority, there is 
added the chairman of the committee to which that bill has 
been referred, necessarily a member of the majority) to act as 
whips, i.e. to give notice of important divisions by sending out 
a “call” to members of the party, and to take all requisite steps 
to have a quorum and a majority present to push through the 
bill or resolution to which the party stands committed. Muta- 
tis mutandis (for of course it is seldom an object with the 
minority to secure a quorum), the minority take the same course 
to bring up their men on important divisions. In cases of 
gravity or doubt, where it is thought prudent to consult or to 
restimulate the party, the caucus committee convokes a caucus, 
i.e. a meeting of the whole party, at which the attitude to be 
assumed by the party is debated with closed doors, and a vote 
taken as to the course to be adopted. 1 By this vote every 


is to canvass his party on all doubtful issues and inform the leaders how many 
votes can be depended on. The gifts of tact, persuasion, and force are required 
to fit him for the delicate work of handling the hesitating or the disaffected. 
[Note to edition of 1910.] 

1 An experienced senator told me that the Senate caucus of his party used' 
to meet on an average twice a month, the House caucus less frequently. A 
leading member of the House said that a “call” would be sent out, on an aver¬ 
age, for about six measures in a session, i.e. from ten to twenty times alto¬ 
gether, according to the resistance offered to the measures of the majority.. 
Sometimes a “call” of the majority is signed by the Speaker. General meets 
ings of a party in Parliament are much less common in England-, 




206 


THE NATIONAL GOVERNMENT 


PART I 


member of the party is deemed bound, just as he would be in 
England by the request of the leader conveyed through the 
whip. Disobedience cannot be punished in Congress itself, 
except of course by social penalties; but it endangers the seat 
of the too independent member, for the party managers at 
Washington will communicate with the party managers in his 
district, and the latter will probably refuse to re-nominate him 
at the next election. The most important caucus of a Con¬ 
gress is that held at the opening to select the party candidate 
for the speakership, selection by the majority being of course 
equivalent to election. As the views and tendencies of the 
Speaker determine the composition of the committees, and 
thereby the course of legislation, his selection is a matter of 
supreme importance, and is preceded by weeks of intrigue and 
canvassing. 

The process of “going into caucus” is the regular American 
substitute for recognized leadership, and has the advantage of 
seeming more consistent with democratic equality, because 
every member of the party has in theory equal weight in the 
party meeting. It is used whenever a line of policy has to be 
settled, or the whole party to be rallied for a particular party 
division. But of course it cannot be employed every day or 
for every bill. Hence when no party meeting has issued its 
orders, a member is comparatively free to vote as he pleases, 
or rather as he thinks his constituents please. If he knows 
nothing of the matter, he may take a friend’s advice, or vote 
as he hears some prominent man on his own side vote. Any¬ 
how, his vote is doubtful, unpredictable; and consequently 
divisions on minor questions are uncertain. This is a further 
reason, added to the power of the standing committees, why 
there is a want of consistent policy in the action of Congress. 
As its leading men have comparatively little authority, and 
there are no means whereby a leader could keep his party to¬ 
gether on ordinary questions, so no definite ideas run through 
its conduct and express themselves in its votes. It moves in 
zig-zags. 

The freedom thus enjoyed by members on minor questions 
has the interesting result of preventing dissensions and splits 
in the parties. There are substances which cohere best when 
their contact is loose. Fresh fallen snow keeps a smooth sur¬ 
face even on a steep slope, but when by melting and regelation 



chap, xix GENERAL OBSERVATIONS ON CONGRESS 207 


it has become ice, cracks and rifts begin to appear. A loose 
hung carriage will hold together over a road whose roughness 
would strain and break a more solid one. Hence serious differ¬ 
ences of opinion may exist in a congressional party without 
breaking its party unity, for nothing more is needed than that 
a solid front should be presented on the occasions, few in each 
session, when a momentous division arrives. The appearance 
of agreement is all the more readily preserved because there is 
little serious debating, so that the advocates of one view seldom 
provoke the other section of their party to rise and contradict 
them ; while a member who dissents from the bulk of his party 
on an important issue is slow to vote against it, because he has 
little chance of defining and defending his position by an ex¬ 
planatory speech. 

The congressional caucus has in troublous times to be sup¬ 
plemented by something like obedience to regular leaders. Mr. 
Thaddeus Stevens, for instance, led with recognized authority 
the majority of the House in its struggle with President An¬ 
drew Johnson. The Senate is rather more jealous of the equal¬ 
ity of all its members. No senator can be said to have any 
authority beyond that of exceptional talent and experience; 
and of course a senatorial caucus, since it rarely consists of 
more than fifty persons, is a better working body than a House 
caucus, which may exceed two hundred. 1 

The European reader may be perplexed by the apparent 
contradictions in what has been said regarding the party or¬ 
ganization of Congress. “Is the American House after all,” 
he will ask, “more or less a party body than the British House 
of Commons? Is the spirit of party more or less strong in 
Congress than in the American people generally?” 

For the purpose of serious party issues the House of Repre¬ 
sentatives is nearly as much a party body as the House of 
Commons. A member voting against his party on such an 
issue is as likely to forfeit his party reputation and his seat 
as is an English member. But for the purpose of ordinary 
questions, of issues not involving party fortunes, a representative 

1 At one time the congressional caucus played in American history a great 
part which it has now renounced. From 1800 till 1824 party meetings of sena¬ 
tors and representatives were held which nominated the party candidates for 
the presidency, who were then accepted by each party as its regular candi¬ 
dates. In 1828 the State legislatures made these nominations, and in 1832 the 
present system of national conventions (see post, in Vol. II.) was introduced. 



208 


THE NATIONAL GOVERNMENT 


PART 1 


is less bound by party ties than an English member, because 
he has neither leaders to guide him by their speeches nor whips 
by their private instructions. 1 The apparent gain is that a wider 
field is left for independent judgment on non-partisan questions. 
The real loss is that legislation becomes weak and inconsistent. 
This conclusion is not encouraging to those who expect us to get 
rid of party in our legislatures. A deliberative assembly is, 
after all, only a crowd of men ; and the more intelligent a crowd 
is, so much the more numerous are its volitions; so much 
greater the difficulty of agreement. Like other crowds, a legis¬ 
lature must be led and ruled. Its merit lies not in the indepen¬ 
dence of its members, but in the reflex action of its opinion upon 
the leaders, in its willingness to defer to them in minor matters, 
reserving disobedience for the issues in which some great prin¬ 
ciple overrides both the obligation of deference to established 
authority and the respect due to special knowledge. 

The above remarks answer the second question also. The 
spirit of party may seem to be weaker in Congress than in the 
people at large. But this is only because the questions which 
the people decide at the polls are always questions of choice 
between candidates for office. These are definite questions, 
questions eminently of a party character, because candidates 
represent in the America of to-day not principles but parties. 
When a vote upon persons occurs in Congress, Congress usu¬ 
ally gives a strict party vote. Were the people to vote at the 
polls on matters not explicitly comprised within a party plat¬ 
form (as they do now in States which have adopted the Initia¬ 
tive and Referendum), there would be a much greater un¬ 
certainty than Congress displays. The habit of joint action 
which makes the life of a party is equally intense in every part 
of the American system. But in England the existence of a 
Ministry and Opposition in Parliament sweeps within the circle 
of party action many topics which in America are left outside, 
and therefore Congress seems, and for some purposes is, less 
permeated than Parliament by party spirit. 

1 For an interesting comparison of party voting in Congress and in the British 
House of Commons, see Mr. A. Lawrence Lowell’s Government of England. 



CHAPTER XX 


THE RELATIONS OF CONGRESS TO THE PRESIDENT 1 

So far as they are legislative bodies, the House and the 
Senate have similar powers and stand in the same relation 
to the executive. 2 We may therefore discuss them together, or 
rather the reader may assume that whatever is said of the House 
as a legislature applies to the Senate. 3 

Although the Constitution forbids any Federal official to be 
a member of either the House or the Senate, there is nothing 
in it to prevent officials from speaking there; as indeed there 
is nothing to prevent either House from assigning places and 
the right to speak to any one whom it chooses. In the early 
days Washington came down and delivered his opening speech. 
Occasionally he remained in the Senate during a debate, and 
even expressed his opinion there. When Hamilton, the first 
secretary of the treasury, prepared his famous report on the 
national finances, he asked the House whether they would hear 
him speak it, or would receive it in writing. They chose the 
latter course, and the precedent then set has been followed by 
subsequent ministers, 4 while that set in 1801 by President 

1 The relations of the various organs of government to one another in the 
United States are so interesting and so unlike those which exist in most Euro¬ 
pean countries, that I have found it necessary to describe them with some 
minuteness, and from several points of view. In this chapter an account is 
given of the actual working relations of the President and Congress ; in the 
next chapter the general theory of the respective functions of the executive 
and legislative departments is examined, and the American view of the nature 
of these functions explained ; while in Chapter XXV. the American system as 
a whole is compared with the so-called “cabinet system ” of Britain and her 
colonies. 

2 The House has the exclusive initiative in revenue bills ; but this privilege 
does not affect what follows. 

3 The executive functions of the Senate have been discussed in Chapter XI. 

4 A committee of the Senate reported in favour of giving the right of speech 
to ministers (see note to Chapter IX. ante ); and this was provided in the Con¬ 
stitution of the Southern Confederacy (see note to Chapter XXVI. at the end 
of this volume). The President may of course come into the Senate. None 
had, however, entered the House of Representatives until in 1913 President 
Wilson went there and instead of sending a written message delivered a speech 

P 209 


210 


THE NATIONAL GOVERNMENT 


PART I 


Jefferson when he transmitted his message in writing instead 
of delivering a speech, has been similarly respected by all his 
successors. Thus neither House now hears a member of the 
executive; and when a minister appears before a committee, he 
appears primarily as a witness to answer questions, rather than 
to state and argue his own case. There is therefore little direct 
intercourse between Congress and the administration, and no 
sense of interdependence and community of action such as exists 
in other parliamentary countries. 1 Be it remembered also that 
a minister may never have sat in Congress, and may therefore 
be ignorant of its temper and habits. Six members of Mr. 
Cleveland’s cabinet, in 1888, and seven of Mr. Taft’s in 1909, 
had never had a seat in either House. The President himself, 
although he has been voted into office by his party, is not 
necessarily its leader, nor even one among its most prominent 
leaders. Hence he may not sway the councils and guide the 
policy of those members of Congress who belong to his own side. 
No duty lies on Congress to take up a subject to which he has 
called attention as needing legislation; and the suggestions 
which he makes, year after year, may be neglected, even when 
his party has a majority in both Houses, or when the subject lies 
outside party lines. Members have sometimes complained of 
his submitting draft bills, although there are plenty of prece¬ 
dents for his doing so. 

The President and his cabinet have no recognized spokesman 
in either House. A particular senator or representative may 
be in confidential communication with them, and be the instru¬ 
ment through whom they seek to act; but he would probably 
disavow rather than claim the position of an exponent of min¬ 
isterial wishes. The President can of course influence mem¬ 
bers of Congress through patronage. He may give places to 
them or their friends; he may approve or veto bills in which 

to the Senate and the House together. No English king has entered the House 
of Commons, except Charles I. in 1642, on the occasion of his attempt to seize 
the five members, when, says the Journal, <l His Majesty came into the House 
and toev. Mr. Speakers chair: ‘Gentlemen, I am sorry to have this occasion 
to come unto you.’” The results did not encourage his successors to repeat 
the visit. But Charles II. was sometimes present during debates in the House 
of Lords, and even exhorted the Lords to be more orderly; Anne sometimes 
appeared ; and there would not, it is conceived, be anything to prevent the Sov¬ 
ereign from being present now while debate is proceeding. 

1 The House once passed a bill for transferring Indian affairs from the Secretary 
of the Interior to the Secretary of War without consulting either official. 



chap, xx CONGRESS AND THE PRESIDENT 


211 


they are interested ; his ministers may allot lucrative contracts 
to their nominees. This power is considerable, but covert, for 
the knowledge that it was being used might damage the mem¬ 
ber in public estimation and expose the executive to imputa¬ 
tions. The consequence of cutting off open relations has been 
to encourage secret influence, which may no doubt be used for 
legitimate purposes, but which, being exerted in darkness, is 
seldom above suspicion. When the President or a minister is 
attacked in Congress, it is not the duty of any one there to justify 
his conduct. The accused official may send a written defence 
or may induce a member to state his case; but this method 
lacks the advantages of the European parliamentary system, 
under which the person assailed repels in debate the various 
charges, showing himself not afraid to answer fresh questions 
and grapple with new points. Thus by its exclusion from Con¬ 
gress the executive is deprived of the power of leading and 
guiding the legislature and of justifying in debate its adminis¬ 
trative acts. 

Next as to the power of Congress over the executive. Either 
House of Congress, or both Houses jointly, can pass resolutions 
calling on the President or his ministers to take certain steps, 
or disapproving steps they have already taken. The Presi¬ 
dent need not obey such resolutions, need not even notice them. 
They do not shorten his term or limit his discretion. 1 More¬ 
over, if the resolution be one censuring the act of a minister, the 
President does not escape responsibility by throwing over the 
minister, because the law makes him, and not his servant or 
adviser, responsible. 

Either House of Congress can direct a committee to summon 
and examine a minister, who, though he may legally refuse 
to attend, very rarely refuses. The committee, when it has got 
him, can do nothing more than question him. He may evade 
their questions, may put them off the scent by dexterous con¬ 
cealments. He may with impunity tell them that he means to 
take his own course. To his own master, the President, he 
standeth or falleth. 

1 In England a resolution of the House of Commons alone is almost always 
treated as imperative in matters lying within the discretion of the executive, 
but then the House of Commons lias the power of dismissing the Government 
if its wishes are disregarded. There have even been instances in which the 
executive has ceased to put in force the provisions of an unrepealed statute, 
because the House of Commons has expressed its disapproval of that statute. 



212 


THE NATIONAL GOVERNMENT 


PART I 


Congress may refuse to the President the legislation he 
requests and thus, by mortifying and embarrassing him, may 
seek to compel his compliance with its wishes. It is only a 
timid President, or a President greatly bent on accomplishing 
some end for which legislation is needed, who will be moved by 
such tactics. 

Congress can pass bills requiring the President or any min¬ 
ister to do or abstain from doing certain acts of a kind hitherto 
left to his free will and judgment, may, in fact, endeavour to 
tie down the officials by prescribing certain conduct for them 
in great detail. The President will presumably veto such 
bills, as contrary to sound administrative policy. If, however, 
he signs them, or if Congress passes them over his veto, the 
further question may arise whether they are within the constitu¬ 
tional powers of Congress, or are invalid as unduly trenching 
on the discretion which the Constitution leaves to the executive 
chief magistrate. If he (or a minister), alleging them to be 
unconstitutional, disobeys them, the only means of deciding 
whether he is right is by getting the point before the Supreme 
Court as an issue of law in some legal proceeding. This cannot 
always be done. If it is done, and the court decide against the 
President, then if he still refuses to obey, nothing remains but 
to impeach him. 

Impeachment, of which an account has already been given, 
is the heaviest piece of artillery in the congressional arsenal, 
but because it is so heavy it is unfit for ordinary use. It is 
like a hundred-ton gun which needs complex machinery to 
bring it into position, an enormous charge of powder to fire it, 
and a large mark to aim at. Or to vary the simile, impeachment 
is what physicians call a heroic medicine, an extreme remedy, 
proper to be applied against an official guilty of political crimes, 
but ill adapted for the punishment of small transgressions. 
Although the one President (Andrew Johnson) against whom 
it has been used had for two years constantly, and with great 
intemperance of language, so defied and resisted Congress that 
the whole machinery of government had been severely strained, 
yet the Senate did not convict him, because no single offence 
had been clearly made out. Thus impeachment does not tend 
to secure, and indeed was never meant to secure, the co-opera¬ 
tion of the executive with Congress. 

It accordingly appears that Congress cannot compel the dis- 



chap, xx CONGRESS AND THE PRESIDENT 


213 


missal of any official. It may investigate his conduct by a 
committee and so try to drive him to resign. It may request 
the President to dismiss him, but if his master stands by him and 
he sticks to his place, nothing more can be done. He may 
of course be impeached, but one does not impeach for mere 
incompetence or laxity, as one does not use steam hammers to 
crack nuts. Thus we arrive at the result that while Congress 
may examine the servants of the public to any extent, may 
censure them, may lay down rules for their guidance, it cannot 
get rid of them. It is as if the directors of a company were 
forced to go on employing a manager whom they had ceased 
to trust, because it was not they but the stockholders who had 
appointed him. 

There remains the power which in free countries has been 
long regarded as the citadel of parliamentary supremacy, the 
power of the purse. The Constitution keeps the President 
far from this citadel, granting to Congress the sole right of 
raising money and appropriating it to the service of the State. 
Its management of national finance is significantly illustrative 
of the plan which separates the legislative from the executive. 
In this supremely important matter, the Administration, instead 
of proposing and supervising, instead of securing that each 
department gets the money that it needs, that no money goes 
where it is not needed, that revenue is procured in the least 
troublesome and expensive way, that an exact yearly balance 
is struck, that the policy of expenditure is self-consistent and 
reasonably permanent from year to year, is by its exclusion 
from Congress deprived of influence on the one hand, of re¬ 
sponsibility on the other. The office of Finance Minister is 
put into commission, and divided between the chairmen of 
several unconnected committees of both Houses. A mass, 
of business which specially needs the knowledge, skill, and 
economical conscience of a responsible ministry, is left to com¬ 
mittees which are powerful but not responsible, and to Houses 
whose nominal responsibility is in practice sadly weakened by 
their want of appropriate methods and organization. 

How far, then, does the power of the purse enable Congress 
to control the President ? Much less than in European coun¬ 
tries. Congress may check any particular scheme which the 
President favours by refusing supplies for it. If he were to 
engage in military operations — he cannot under the Constitu- 




214 


THE NATIONAL GOVERNMENT 


PART I 


tion “declare war” for that belongs to Congress — the House 
might paralyze him by declining to vote the requisite army 
appropriations. If he were to repeat the splendid audacity of 
Jefferson by purchasing a new territory, they could withhold 
the purchase money. But if, keeping within the limits of his 
constitutional functions,. he takes a different course from that 
they recommend, if for instance he should refuse, at their 
repeated requests, to demand the liberation of American citi¬ 
zens pining in foreign dungeons, or to suppress disorders in a 
State whose government had requested Federal intervention, 
they would have to look on. To withhold the ordinary sup¬ 
plies, and thereby stop the machine of government, would 
injure the country and themselves far more than the Presi¬ 
dent. They would, to use a common expression, be cutting 
off their nose to spite their face. They could not lawfully 
refuse to vote his salary, for that is guaranteed to him by the 
Constitution. They could not, except by a successful impeach¬ 
ment, turn him out of the White House or deprive him of his 
title to the obedience of all Federal officials. 

Accordingly, when Congress has endeavoured to coerce the 
President by the use of its money powers, the case being one 
in which it could not attack him by ordinary legislation (either 
because such legislation would be unconstitutional, or for 
want of a two-thirds majority), it has proceeded not by refusing 
appropriations altogether, as the British House of Commons 
would do in like circumstances, but by attaching what is called 
a “rider” to an appropriation bill. Many years ago the House 
formed, and soon began to indulge freely in, the habit of insert¬ 
ing in bills appropriating money to the purposes of the public 
service, provisions relating to quite different matters, which there 
was not time to push through in the ordinary way. In 1867 
Congress used this device against President Johnson, with whom 
it was then at open war, by attaching to an army appropriation 
bill a clause which virtually deprived the President of the com¬ 
mand of the army, entrusting its management to the general 
highest in command (General Grant). The President yielded, 
knowing that if he refused the bill would be carried over his veto 
by a two-thirds vote ; and a usage already mischievous was con¬ 
firmed. In 1879, the majority in Congress attempted to over¬ 
come, by the same weapon, the resistance of President Hayes 
to certain measures affecting the South which they desired to 





chap, xx CONGRESS AND THE PRESIDENT 


215 


pass. They tacked these measures to three appropriation bills, 
army, legislative, and judiciary. The minority in both houses 
fought hard against the riders, but were beaten. The Presi¬ 
dent vetoed all three bills, and Congress was obliged to pass 
them without the riders. Next session the struggle recommenced 
in the same form, and the President, by rejecting the money 
bills, again compelled Congress to drop the tacked provisions. 
This victory, which was of course due to the fact that the domi¬ 
nant party in Congress could not command a two-thirds majority, 
was deemed to have settled the question as between the executive 
and the legislature, and may have permanently discouraged the 
latter from recurring to the same tactics. 

President Hayes in his veto messages argued against the 
practice of tacking other matters to money bills; and a rule of 
the House (not always strictly observed) now declares that an 
appropriation bill shall not carry any new legislation. It has 
certainly caused great abuses, and is forbidden by the constitu¬ 
tions of many States. A President once urged upon Congress 
the desirability of so amending the Federal Constitution as to 
enable him, as a State governor is by some recent State consti¬ 
tutions allowed to do, to veto single items in an appropriation 
bill without rejecting the whole bill. Such an amendment 
is desired by enlightened men, because it would enable the 
executive to do its duty by the country in defeating the petty 
jobs now smuggled into these bills, without losing the supplies 
necessary for the public service which the bills provide. Small 
as the change seems, its adoption would cure one of the defects 
due to the absence of ministers from Congress, and save the 
nation millions of dollars a year, by diminishing wasteful ex¬ 
penditure on local purposes. But the process of amending the 
Constitution is so troublesome that even a change which involves 
no party issues may remain unadopted long after the best opin¬ 
ion has become unanimous in its favour. 



CHAPTER XXI 


THE LEGISLATURE AND THE EXECUTIVE 

The fundamental characteristic of the American National 
Government is its separation of the legislative, executive, and 
judicial departments. This separation is the merit which the 
Philadelphia Convention chiefly sought to attain, and which 
the Americans have been wont to regard as most completely 
secured by their Constitution. In Europe, as well as in America, 
men are accustomed to talk of legislation and administration 
as distinct. But a consideration of their nature will show that 
it is not easy to separate these two departments in theory by 
analysis, and still less easy to keep them apart in practice. 
We may begin by examining their relations in the internal 
affairs of a nation, reserving foreign policy for a later part of the 
discussion. 

People commonly think of the Legislature as the body which 
lays down general rules of law, which prescribes, for instance, 
that at a man’s death his children shall succeed equally to his 
property, or that a convicted thief shall be punished with im¬ 
prisonment, or that a manufacturer may register his trade mark. 
They think of the Executive as consisting of the persons who do 
certain acts under those rules, who lock up convicts, register 
trade marks, carry letters, raise and pay a police and an army. 
In finance the Legislature imposes a tax, the Executive gathers 
it, and places it in the treasury or in a bank, subject to legislative 
orders ; the Legislature votes money by a statute, appropriating 
it to a specific purpose ; the Executive draws it from the treasury 
or bank, and applies it to that purpose, perhaps in paying the 
army, perhaps in building a bridge. 

The executive is, in civilized countries, itself the creature of 
the law, deriving therefrom its existence as well as its author¬ 
ity. Sometimes, as in France, it is so palpably and formally. 
The President of the Republic has been called into existence 
by the Constitution. Sometimes, as in England, it is so sub- 

216 


CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


217 


stantially, though not formally. The English Crown dates 
from a remote antiquity, when custom and belief had scarcely 
crystallized into law; and though Parliament has repeatedly 
determined its devolution upon particular persons or families 
— it is now held under the Act of Settlement — no statute has 
ever affected to confer upon it its rights to the obedience of 
the people. But practically it holds its powers at the pleas¬ 
ure of Parliament, which has in some cases expressly limited 
them, and in others given them a tacit recognition. We may 
accordingly say of England and of all constitutional mon¬ 
archies as well as of republics that the executive in all its acts 
must obey the law, that is to say, if the law prescribes a par¬ 
ticular course of action, the executive must take that course; if 
the law forbids a particular course, the executive must avoid it. 

It is therefore clear that the extent of the power of the 
executive magistrate depends upon the particularity with 
which the law is drawn, that is, upon the amount of discretion 
which the law leaves to him. If the law is general in its terms, 
the executive has a wide discretion. If, for instance, the 
law prescribes simply that a duty of ten per cent ad valorem 
be levied on all manufactured goods imported, it rests with 
the executive to determine by whom and where that duty 
shall be collected, and on what principles it shall be calcu¬ 
lated. If the law merely creates a post-office, the executive 
may fix the rate of payment for letters and parcels, and the 
conditions on which they will be received and delivered. In 
these cases the executive has a large field within which to 
exert its free will and choice of means. Power means nothing 
more than the extent to which a man can make his individual 
will prevail against the wills of other men, so as to control 
them. Hence, when the law gives to a magistrate a wide dis¬ 
cretion, he is powerful, because the law clothes his will with 
all the power of the state. On the other hand, if the law goes 
into minute details, directing this to be done and that not to 
be done, it narrows the discretion of the executive magistrate. 
His personal will and choice are gone. He can no longer be 
thought of as a co-ordinate power in the state. He becomes 
a mere servant, a hand to carry out the bidding of the legis¬ 
lative brain, or, we may even say, a tool in the legislative 
hand. 

As the legislature has been the body through-which the peo- 



218 


THE NATIONAL GOVERNMENT 


PART I 


pie have chiefly asserted their authority, we find that law¬ 
making assemblies, whether primary or representative, have 
always sought to extend their province and to subject the 
executive to themselves. They have done this in several 
ways. In the democracies of ancient Greece the assembly of 
citizens not only passed statutes of general application, but 
made peace or declared war; ordered an expedition to start 
for Sphacteria, and put Cleon at the head of it; commanded 
the execution of prisoners of war, or reprieved them ; conducted, 
in fact, most of the public business of the city by a series of 
decrees, all of which were laws, i.e. declarations of its sov¬ 
ereign will. It was virtually the government. The chief 
executive officers of Athens, called the generals, had little 
authority except over the military operations in the field. 
Even the Roman Constitution, a far more highly developed 
and scientific, though also a complicated and cumbrous system, 
while it wisely left great discretion to the chief magistrates 
(requiring them, however, to consult the Senate), yet per¬ 
mitted the passing pro re nata of important laws, which were 
really executive acts, such as the law by which Pompey re¬ 
ceived an extraordinary command against Mithridates. The 
Romans did not draw, any more than the Greek republics, a 
distinction between general and special legislation. 1 

This method, in which the people directly govern as a legis¬ 
lature, reducing the executive magistrates to mere instru¬ 
ments, is inapplicable in a large country, because the mass 
of citizens cannot there meet as an assembly. It is highly 
inconvenient where the legislature, though a representative 
body, is very numerous. England, accordingly, and the 
nations which have imitated England, 2 have taken a different 


1 Cf. Chapter XXXI. and notes thereto. The distinction is apt to be for¬ 
gotten under a despotic monarch, who is at once the executive and the legisla¬ 
tive authority. Nevertheless, even under an autocrat there are some general 
rules which his individual volition dares not change, because the universal 
opinion of the people approves them. The book of Daniel represents Darius 
as unable to revoke a general law he has once sanctioned, or to except a par¬ 
ticular person from its operation ; and the Turkish sultan cannot transgress, 
at least in points of importance, the Sheriat or Sacred Law. 

2 But during and immediately after the great Civil War the Long Parlia¬ 
ment acted as both a legislative and an executive authority, as did the Con¬ 
vention through part of the French Revolution. And Parliament of course 
still retains its power of giving what are practically executive orders, e.g. it 
can pass a statute directing a particular island to be seized or another to be 
evacuated, as Heligoland was in 1890. 



CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


219 


method. The people (that is, the qualified voters) have allowed 
an executive to subsist with apparently wide powers, but they! 
virtually choose this executive, and keap it in so close and con¬ 
stant a dependence upon their pleasure, that it dare not act 
against what it believes their will to be. The struggle for 
popular liberties in England took at first the form of a struggle 
for the supremacy of law; that is to say, it was a struggle to 
restrain the prerogative of the king by compelling his ministers > 
to respect the ancient customs of the land and the statutes’ 
passed in Parliaments As the customs were always maintained, 
and the range of the statutes constantly widened, the executive 
was by degrees hemmed in within narrow limits, its discretion¬ 
ary power restricted, and that characteristic principle of the 
Constitution, which has been well called “The Reign of Law,” 
was established. It was settled that the law, i.e. the ancient 
customs and the statutes, should always prevail against the 
discretion of the Crown and its ministers, and that acts done 
by the servants of the Crown should be justiciable, exactly like 
the acts of private persons. This once achieved, the executive 
fairly bitted and bridled, and the ministry made to hold office 
at the pleasure of the House of Commons, Parliament had no 
longer its former motive for seeking to restrict the discretion 
of the ministers of the Crown by minutely particular legisla¬ 
tion, for ministers had become so accustomed to subjection that 
their discretion might be trusted. Parliament has, in fact, of 
late years begun to sail on the other tack, and allows ministers 
to do many things by regulations, schemes, orders in council, 
and so forth, which would previously have been done by statute, 
generally, however, reserving to itself a right of disapproval. 

It may be asked how it comes, if this be so, that people 
nevertheless talk of the executive in England as being a sepa¬ 
rate and considerable authority. The answer is twofold. The 
English Crown has never been, so to speak, thrown into the 
melting-pot and recast, but has continued, in external form and 
seeming, an independent and highly dignified part of the con¬ 
stitutional system. 1 Parliament has never asserted a direct 

1 An interesting illustration of the relations of the English executive to the 
legislature in the fourteenth and fifteenth centuries, when Parliament was 
little more than a pure legislature, is afforded by the present constitution of 
the tiny kingdom of the Isle of Man, the last survivor of those numerous king¬ 
doms among which the British Isles were once divided. Its government is 
carried on by a Governor (appointed by the English Crown), a council of eight 



220 


THE NATIONAL GOVERNMENT 


PART I 


control over certain parts of the royal prerogative, such as the 
bestowal of honours, the creation of peerages, the making of 
appointments to office. No one at this moment can say exactly 
what the royal prerogative does or does not include. And 
secondly, the actual executive, i.e. the ministry of the day, 
retains some advantages which are practically, though not 
legally, immense. It has an initiative in all legislation, a sole 
initiative in financial legislation. It is a small and well organ¬ 
ized body placed in the midst of a much larger and less or¬ 
ganized body {i.e. the two Houses), on which therefore it can 
powerfully act. All patronage, ecclesiastical as well as civil, 
lies in its gift, and though it must not use this function so as 
to disgust the Commons, it has great latitude in the disposal 
of favours. While Parliament is sitting it disposes of a large 
part, sometimes of the whole, of the time of the House of Com¬ 
mons, and can therefore advance the measures it prefers, while 
retarding or evading motions it dislikes. During nearly half 
the year Parliament is not sitting, and the necessities of a great 
State placed in a restless world oblige a ministry to take mo¬ 
mentous resolutions upon its own responsibility. Finally, 
it includes a few men who have obtained a hold on the imagi¬ 
nation and confidence of the people, which emboldens them to 
resist or even to lecture Parliament, and often to prevail, not 
only against its first impulses, but possibly against its deliber¬ 
ate wishes. And an English ministry is strong not only because 
it so frankly acknowledges its dependence on the Commons as 
not to rouse the antagonism of that body, to which, be it remem¬ 
bered, most ministers belong, but also because it has another 
power outside to which it can, in extreme cases, appeal. It 
may dissolve Parliament, and ask the people to judge between 
its views and those of the majority of the House of Commons. 

(composed partly, of persons nominated by the Crown and partly of ex-officio 
members holding posts to which they have been appointed by the Crown), and 
an elected representative assembly of twenty-four. The assembly is purely 
legislative, and cannot check the Governor otherwise than by withholding the 
legislation he wishes for and such taxes as are annually voted. For the pur¬ 
poses of finance bills the assembly (House of Keys) and the council sit together 
but vote separately. The Governor presides, as the English king did in his 
Great Council. The Governor can stop any legislation he disapproves, and 
can retain his ministers against the will of the assembly. He is a true execu¬ 
tive magistrate, commanding, moreover, like the earlier English kings, a con¬ 
siderable revenue which does not depend on the annual votes of the legisla¬ 
ture. Here therefore is an Old-World instance of the American system as 
contradistinguished from the cabinet system of England and her colonies. 



CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


221 


Sometimes such an appeal succeeds. The power of making it 
is at all times a resource. 

This delicate equipoise of the ministry, the House of Com¬ 
mons, and the nation acting at a general election, is the secret 
of the smooth working of the British Constitution. It reap¬ 
pears in two remarkable Constitutions, which deserve fuller 
study than they have yet received from American or English 
publicists, those of Prussia and the new German Empire. 
There, however, the ministry is relatively stronger than in 
England, because the Crown retains not only a wider range of 
legal authority, but a greater moral influence over the people, 
who have had a shorter practice than the English in working 
free institutions, and who never forget that they are soldiers, 
and the King-Emperor head of the army. A Prussian minister is 
so likely to have the nation on his side when he makes an ap¬ 
peal to it in the name of the King, and feels so confident that 
even if he defies the Chambers without dissolving, the nation 
will not be greatly stirred, that he has sometimes refused to 
obey the legislature. This is one of those exceptions which 
illustrate the rule. The legislature is prevented from gaining 
ground on the executive, not so much by the Constitution as 
by the occasional refusal of the executive to obey the Consti¬ 
tution, a refusal made in reliance on the ascendency of the 
Crown. 

So far we have been considering domestic policy. The case 
of foreign affairs differs chiefly in this, that they cannot be 
provided for beforehand by laws general in application, but 
minutely particular in wording. A governing assembly may 
take foreign affairs into its own hand. In the republics of 
antiquity the Assembly did so, and was its own foreign office. 
The Athenian Assembly received ambassadors, declared war, 
concluded treaties. It got on well enough while it had to deal 
with other republics like itself, but suffered when the contest 
came to be with an astute diplomatist like Philip of Macedon. 
The Roman Senate conducted the foreign policy of Rome, 
often with the skill to be expected from men of immense ex¬ 
perience and ability, yet sometimes with a vacillation which 
a monarch would have been less likely to show. But the 
foreign relations of modern states are so numerous and com¬ 
plex, and so much entangled with commercial questions, that 
it has become necessary to create a staff of trained officials to 



222 


THE NATIONAL GOVERNMENT 


PART I 


deal with them. No large popular assembly could have either 
the time or the knowledge requisite for managing the ordinary 
business, much less could it conduct a delicate negotiation 
whose success would depend on promptitude and secrecy. 
Hence even democratic countries like France and England are 
farced to leave foreign affairs to a far greater degree than 
borne affairs to the discretion of the ministry of the day. France 
reserves to the Chambers the power of declaring war or con¬ 
cluding a treaty. England has so far adhered to the old tra¬ 
ditions as to leave both to the Crown, though the first, and 
in most cases the second, must be exerted with the virtual 
approval of Parliament. The executive is as distinctly respon¬ 
sible to the legislature, as clearly bound to obey the directions 
of the legislature, as in matters of domestic concern. But the 
impossibility which the legislature in countries like France 
and England finds in either assuming executive functions in 
international intercourse, or laying down any rules by law for 
the guidance of the executive, necessarily gives the executive 
a wide discretion and a correspondingly large measure of in¬ 
fluence and authority. The only way of restricting this au¬ 
thority would be to create a small foreign affairs committee of 
the legislature and to empower it to sit when the latter was 
not sitting. And this extreme course neither France nor Eng¬ 
land has yet taken, because the dependence of the ministry on 
the majority of the legislature has hitherto seemed to secure 
the conformity of the Foreign Office to the ideas and sentiments 
of that majority. 

Before applying these observations to the United States, let 
us summarize the conclusions we have reached. 

We have found that wherever the will of the people prevails, 
the legislature, since it either is or represents the people, can 
make itself omnipotent, unless checked by the action of the 
people themselves. It can do this in two ways. It may, like 
the republics of antiquity, issue decrees for particular cases as 
they arise, giving constant commands to all its agents, who 
thus become mere servants with no discretion left them. Or 
it may frame its laws with such particularity as to provide 
by anticipation for the greatest possible number of imaginable 
cases, in this way also so binding down its officials as to leave 
them no volition, no real authority. 

We have also observed that every legislature tends so to 



CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


223 


enlarge its powers as to encroach on the executive; and that 
it has great advantages for so doing, because a succeeding leg¬ 
islature rarely consents to strike off any fetter its predecessor 
has imposed. 

Thus the legitimate issue of the process would be the extinc¬ 
tion or absorption of the executive as a power in the state. 
It would become a mere set of employees, obeying the legisla¬ 
ture as the clerks in a bank obey the directors. If this does 
not happen, the cause is generally to be sought in some one or 
more of the following circumstances: — 

The legislature may allow the executive the power of appeal¬ 
ing to the nation against itself (England). 1 

The people may from ancient reverence or the habit of mili¬ 
tary submission be so much disposed to support the executive 
as to embolden the latter to defy the legislature (Prussia). 

The importance of foreign policy and the difficulty of taking 
it out of the hands of the executive may be so great that the 
executive will draw therefrom an influence re-acting in favour 
of its general weight and dignity (Prussia, England, and, to 
some extent, France). 

Let us now see how the founders of the American Constitu¬ 
tion settled the relations of the departments. They were 
terribly afraid of a strong executive, and desired to reserve 
the final and decisive voice to the legislature, as representing 
the people. They could not adopt the Greek method of an 
assembly both executive and legislative, for Congress was to 
be a body with limited powers; continuous sittings would be 
inconvenient, and the division into two equally powerful houses 
would evidently unfit it to govern with vigour and promptitude. 
Neither did they adopt the English method of a legislature 
governing through an executive dependent upon it. It was 
urged in the Philadelphia Convention of 1787 that the execu¬ 
tive ought to be appointed by and made accountable to the 
legislature, as being the supreme power in the national gov¬ 
ernment. This was over-ruled, because the majority of the 
Convention were fearful of “ democratic haste and instability, 
fearful that the legislature would, in any event, become too 
powerful, and therefore anxious to build up some counter^ 
authority to check and balance it. By making the President 

i In France the President can dissolve the Chambers, but only with the 
tonsent of the Senate. 




224 


THE NATIONAL GOVERNMENT 


PART I 


independent, and keeping him and his ministers apart from the 
legislature, the Convention thought they were strengthening 
him, as well as protecting it from attempts on his part to cor¬ 
rupt it . 1 They were also weakening him. He lost the initia¬ 
tive in legislation which the English executive enjoys. He 
had not the English King’s power of dissolving the legisla¬ 
ture and throwing himself upon the country. Thus the execu¬ 
tive magistrate seemed left at the mercy of the legislature. 
It could weave so close a network of statutes round him) like ' 7 
the net of ironjinks which Hephaestus throws over the lovers 
in the Odyssey,{ that his discretion, his individual volition, 
seemed to disappear, and he ceased to be a branch of the gov¬ 
ernment, being nothing more than a servant working under 
the eye and at the nod of his master. This would have been 
an absorption of the executive into the legislature more com¬ 
plete than that which England now presents, for the English 
prime minister is at any rate a leader, perhaps as necessary to 
his parliamentary majority as it is to him, whereas the Presi¬ 
dent would have become a sort of superior police commissioner, 
irremovable during four years, but debarred from acting either 
on Congress or on the people. 

Although the Convention may not have realized how helpless 
such a so-called Executive must be, they felt the danger of 
encroachments by an ambitious legislature, and resolved to 
strengthen him against it. This was done by giving the Presi¬ 
dent a veto which it requires a two-thirds vote of Congress to 
over-ride. In doing this they partly reversed their previous 
action. They had separated the President and his ministers 
from Congress. They now bestowed on him legislative func¬ 
tions, though in a different form. He became a distinct branch 
of the legislature, but for negative purposes only. He could 
not propose, but he could refuse. Thus the executive was 
strengthened, not as an executive, but by being connected with 
the legislature; and the legislature, already weakened by its 
division into two co-equal houses, was further weakened by 
finding itself liable to be arrested in any new departure on 
which two-thirds of both houses were not agreed. 

1 Their sense of the danger to a legislature from corruption by the execu¬ 
tive was probably quickened by what they knew of the condition of the Irish 
Parliament, full, even after 1782, of placemen and pensioners. Much of the 
best blood of Ulster had emigrated to America in the preceding half century, 
and Irish politics must have excited a good deal of interest there. 



CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


225 


When the two houses are of one mind, and the party hostile 
to the President has a two-thirds majority in both, the Execu¬ 
tive is almost powerless. It may be right that he should be 
powerless, because such majorities in both houses presumably 
indicate a vast preponderance of popular opinion against him. 
The fact to be emphasized is, that in this case all “balance of 
oowers” is gone. The legislature has swallowed up the execu¬ 
tive, in virtue of the principle from which this discussion started, 
viz. that the executive is in free States only an agent who may 
be so limited by express and minute commands as to have no 
volition left him. 

The strength of Congress consists in the right to pass stat¬ 
utes ; the strength of the President in his right to veto them. 
But foreign affairs, as we have seen, cannot be brought within 
the scope of statutes. How then was the American legislature 
to deal with them? There were two courses open. One was 
to leave foreign affairs to the executive, as in England, giving 
Congress the same indirect control as the English Parliament 
enjoys over the Crown and ministry. This course could not 
be taken, because the President is independent of Congress 
and irremovable during his term. The other course would 
have been for Congress, like a Greek assembly, to be its own 
foreign office, or to create a foreign affairs committee of its 
members to handle these matters. As the objections to this 
course, which would have excluded the chief magistrate from 
functions naturally incidental to his position as official repre¬ 
sentative of the nation, were overwhelmingly strong, a com¬ 
promise was made. The initiative in foreign policy and the 
conduct of negotiations were left to him, bub the right of 
declaring war was reserved to Congress, and that of making 
treaties to one, the smaller and more experienced, branch of 
the legislature. A measure of authority was thus suffered to 
fall back to the Executive which would have served to raise 
materially his position had foreign questions played as large a 
part in American politics as they have in French or English. 
They have, however, been comparatively unimportant, espe¬ 
cially from 1815 till 1898, a time of external peace, except for the 
Mexican War of 1846. 

It may be said that there was yet another source whence 
the executive might draw strength to support itself against the 
legislature, viz. those functions which the Constitution, deem- 

Q 



226 


THE NATIONAL GOVERNMENT 


PART I 


ing them necessarily incident to an executive, has reserved to 
the President and excluded from the competence of Congress. 
But examination shows that there is scarcely one of these which 
the long arm of legislation cannot reach. The President is com¬ 
mander-in-chief of the army, but the numbers and organization 
of the army-are fixed by statute. The President makes appoint¬ 
ments, but the Senate has the right of rejecting them, and 
Congress may pass Acts specifying the qualifications of ap¬ 
pointees, and reducing the salary of any official except the 
President himself and the judges. The real strength of the 
executive therefore, the rampart from behind which it can 
resist the aggressions of the legislature, is in ordinary times 
the veto power . 1 In other words, it survives as an executive 
in virtue not of any properly executive function, but of the 
share in legislative functions which it has received; it holds 
its ground by force, not of its separation from the legislature, 
but of its participation in a right properly belonging to the 
legislature . 2 

An authority which depends on a veto capable of being over¬ 
ruled by a two-thirds majority may seem frail. But the expe¬ 
rience of a century has shown that, Owing to the almost equal 
strength of the two great parties, the Houses often differ, and 
there is rarely a two-thirds majority of the same colour in both. 
Hence the Executive has enjoyed some independence. He is 
strong for defence, if not for attack. Congress can, except 
within that narrow sphere which the Constitution has abso¬ 
lutely reserved to him, baffle the President, can interrogate, 
check, and worry his ministers. But it can neither drive him 

1 In moments of public danger, as during the War of Secession, the execu¬ 
tive of course springs up into immense power, partly because the command of 
the army is then of the first importance-; partly because the legislature, feel¬ 
ing its unfitness for swift and secret decisions, gives free rein to the Executive, 
and practically puts its law-making powers at his disposal. 

2 What is said here of the national executive and national legislature is a 
fortiori true of the State executives and State legislatures. The State governor 
has little power of independent action whatever, being checked at every 
step by State statutes, and his discretion superseded by the minute directions 
which those statutes contain. He has not even ministers, because the other 
chief officials of the State are chosen, not by himself, but by popular vote. He 
has very little patronage ; and he has no foreign policy at all. The State 
legislature would therefore prevail against him in everything, were it not for 
his veto, for the fact that the legislature is now generally restrained (by the 
provisions of the State constitution) from passing laws on many topics, and 
for that influence with the people which a strong and upright Governor can 
exert. (See post, Chapters XXXVII.-XLV.) 



CHAP. XXI 


LEGISLATURE AND EXECUTIVE 


227 


the way it wishes him to go, nor dismiss them for disobedience 
or incompetence. 

An individual man has some great advantages in combating 
an assembly. His counsels are less distracted. His secrets 
are better kept. He may sow discord among his antagonists. 
He can strike a more sudden blow. Julius Caesar was more 
than a match for the Senate, Cromwell for the Long Parlia¬ 
ment, even Louis Napoleon for the French Assembly of 1851. 
Hence, when the President happens to be a strong man, reso¬ 
lute, prudent, and popular, he may well hope to prevail against 
a body whom he may divide by the dexterous use of patronage, 
may weary out by inflexible patience, may overawe by winning 
the admiration of the masses, always disposed to rally round 
a striking personality. But in a struggle extending over a 
long course of years an assembly has advantages over a suc¬ 
cession of officers, especially of elected officers. The Roman 
Senate encroached on the consuls, though it was neither a leg¬ 
islature nor representative; the Carthaginian Councils en¬ 
croached on the Suffetes ; the Venetian Councils encroached on 
the Doge. Men come and go, but an assembly goes on for 
ever; it is immortal, because while the members change, the 
policy, the passion for extending its authority, the tenacity in 
clinging to what has once been gained, remain persistent. A 
weak magistrate comes after a strong magistrate, and yields 
what his predecessor had fought for; but an assembly holds all 
it has ever won. 1 Its pressure is steady and continuous ; it is 
always, by a sort of natural process, expanding its own powers 
and devising new methods for fettering its rival. Thus Con¬ 
gress, though it is no more respected or loved by the people 
now than it was in its earlier days, and has developed no higher 
capacity for promoting the best interests of the state, has suc¬ 
ceeded in occupying most of the ground which the Consti¬ 
tution left debatable between the President and itself; 2 and 

1 This is still more conspicuously the case when the members of the execu¬ 

tive government do not sit in the assembly. When they do, and lead it, their 
influence tends to restrain legislative encroachments. Even the presence of 
persons who are likely to be soon called on to form the executive has its in¬ 
fluence, for they are disposed to defend the constitutional position of an au¬ 
thority to which they hope in their turn to succeed. This has been frequently 
seen in England. ^ . , 

2 The modification (in 1869) and repeal (in 1886) of the Tenure of Office Act 
(see above, p. 64) are scarcely instances to the contrary, because that Act, 
even if constitutional, had proved difficult to work. 



228 


THE NATIONAL GOVERNMENT 


PART I 


/ 


would, did it possess a better internal organization, be more 
plainly than it now is the supreme power in the government. 

In their effort to establish a balance of power, the framers 
of the Constitution so far succeeded that neither power has 
subjected the other. But they underrated the inconveniences 
which arise from the disjunction of the two chief organs of 
government. They relieved the Administration from a duty 
which European ministers find exhausting and hard to recon¬ 
cile with the conduct of administration — the duty of giving 
attendance in the legislature and taking the lead in its debates. 
They secured continuity of executive policy for four years at 
least, instead of leaving government at the mercy of fluctuating 
majorities in an excitable assembly. But they so narrowed the 
sphere of the executive as to prevent it from leading the coun¬ 
try, or even its own party in the country, except indeed in a 
national crisis, or when the President happens to be exceptionally 
popular. They sought to make members of Congress indepen¬ 
dent, but in doing so they deprived them of some of the means 
which European legislators enjoy of learning how to adminis¬ 
ter, of learning even how to legislate in administrative topics. 
They condemned them to be architects without science, critics 
without experience, censors without responsibility. 




CHAPTER XXII 


THE FEDERAL COURTS 

When in 1788 the loosely confederated States of North 
America united themselves into a nation, national tribunals 
were felt to be a necessary part of the national government. 
Under the Confederation there had existed no means of enforc¬ 
ing the treaties made or orders issued by the Congress, because 
the courts of the several States owed no duty to that feeble 
body, and had little will to aid it. Now that a Federal legisla¬ 
ture had been established, whose laws were to bind directly 
the individual citizen, a Federal judicature was evidently needed 
to interpret and apply these laws, and to compel obedience 
to them. The alternative would have been to entrust the en¬ 
forcement of the laws to State courts. But State courts were 
not fitted to deal with matters of a quasi-international character, 
such as admiralty jurisdiction and rights arising under treaties. 
They supplied no means for deciding questions between different 
States. They could not be trusted to do complete justice between 
their own citizens and those of another State. Being under 
the control of their own State governments, they might be forced 
to disregard any Federal law which the State disapproved; 
or even if they admitted its authority, might fail in the zeal or 
the power to give due effect to it. And being authorities co¬ 
ordinate with and independent of one another, with no common 
court of appeal placed over them to correct their errors or har¬ 
monize their views, they would be likely to interpret the Federal 
Constitution and statutes in different senses, and make the law 
uncertain by the variety of their decisions. These reasons 
pointed imperatively to the establishment of a new tribunal or 
set of tribunals, altogether detached from the States, as part of 
1 the machinery of the new government. Side by side of the thir¬ 
teen different sets of State courts, whose jurisdiction under 
State laws and between their own citizens was left untouched, 
there arose a new and complex system of Federal courts. The 

229 


230 


THE NATIONAL GOVERNMENT 


PART 1 


Constitution drew the outlines of the system. Congress per¬ 
fected it by statutes; and as the details rest upon these 
statutes, Congress retains the power of altering them. Few 
American institutions are better worth studying than this 
intricate judicial machinery: few deserve more admiration for 
the smoothness of their working: few have more contributed 
to the peace and well-being of the country. 

The Federal courts fall into four classes : — 

The Supreme court, which sits at Washington. 

The Circuit Courts of Appeals. 

The Circuit courts. 

The District courts. 

The Supreme court is directly created by Art. iii. § 1 of the 
Constitution, but with no provision as to the number of its 
judges. Originally there were six; at present there are nine, 
a chief justice, with a salary of $13,000 and eight associate 
justices (salary $12,500). The justices are nominated by the 
President and confirmed by the Senate. They hold office 
during good behaviour, i.e. are removable only by impeach¬ 
ment ; and have thus a tenure even more secure than that 
of English judges, for the latter may be removed by the 
Crown on an address from both Houses of Parliament. 1 More¬ 
over, the English statutes secure the permanence only of the 
judges of the Supreme court of judicature, not also of judges 
of county or other local courts, while the provisions of the 
American Constitution are held to apply to the inferior as well 
as the superior Federal judges. 2 The Fathers of the Constitu¬ 
tion were extremely anxious to secure the independence of 
their judiciary, regarding it as a bulwark both for the people 
and for the States against aggressions of either Congress or 
the President. 3 They affirmed the life tenure by an unani¬ 
mous vote in the Convention of 1787, because they deemed the 

1 12 and 13 William III, cap. 2; cf.l George III, cap. 23. The occasional 
resistance of the parliament of Paris, whose members held office for life, to the 
French Crown may probably have confirmed the Convention of 1787 in its 
attachment to this English principle. 

2 As to United States judges in the Territories see Chapter XLVII. 

3 See Hamilton in Federalist, No. lxxviii: “ The standard of good behaviour 
for the continuance in office of the judicial magistracy is certainly one of the 
most valuable of the modern improvements in the practice of government. In 
a monarchy it is an excellent barrier to the despotism of the prince; in a repub¬ 
lic it is a no less excellent barrier to the encroachments and oppressions of the 
legislative body.” 



CHAP. XXII 


THE FEDERAL COURTS 


231 


risk of the continuance in office of an incompetent judge a less 
evil than the subserviency of all judges to the legislature, which 
might flow from a tenure dependent on legislative will. The 
result has justified their expectations. The judges, although 
neither they nor any one can wholly escape the influence of party 
bias, have shown themselves independent of Congress and of 
party authority, yet the security of their position has rarely 
tempted them to breaches of judicial duty. Impeachment has 
been six times resorted to, once only against a justice of the 
Supreme court, and then unsuccessfully. 1 Attempts have been 
made, beginning from Jefferson, who argued that judges should 
hold office for terms of four or six years only, to alter the tenure 
of the Federal judges, as that of the State judges has been altered 
in most States; but Congress has always rejected the proposal. 

The Supreme court sits at Washington from October till 
June in every year. The presence of six judges is required to pro¬ 
nounce a decision, a rule which, by preventing the division of 
the court into two or more branches, retards the despatch of 
business, though it has the advantage of securing a thorough 
consideration of every case. The sittings are held in the Capi¬ 
tol, in the chamber formerly occupied by the Senate, and the 
justices wear black gowns, being not merely the only public 
officers, but almost the only non-ecclesiastical persons of any 
kind whatever within the bounds of the United States who till 
recently used any official dress. 2 Every case is discussed by 
the whole body twice over, once to ascertain the opinion of the 
majority, which is then directed to be set forth in a written 
judgment; then again when that written judgment, which one 
of the judges has prepared, is submitted for criticism and 
adoption as the judgment of the court. 

The Circuit Courts of Appeal have been created by Congress 
under a power in the Constitution to establish “ inferior courts.” 
There are at present nine judicial circuits, in which courts are 
held regularly. Each of these has two, three or four Circuit 
judges (salary $7000), and to each there is also allotted one of the 

1 This was Samuel Chase of Maryland in 1804—5. The other cases 
were of district Federal judges and a judge of Commerce Court. (See p. Ill, 
supra.) 

2 Now however in most universities the president and professors, and some¬ 
times also the graduates, have begun to wear academic gowns and hoods on 
great occasions, such as the annual Commencement. Gowns are worn by the 
judges in Federal Circuit Courts and in the New York Court of Appeals. 



232 


THE NATIONAL GOVERNMENT 


PART I 


justices of the Supreme court. The Circuit Court of Appeal 
may be held either by a Circuit judge alone, or by the Supreme 
court Circuit justice alone, or by both together, or by either 
sitting along with the District judge (hereafter mentioned) of the 
district wherein the particular circuit court is held, or by the Dis¬ 
trict judge alone. To the Circuit Courts of Appeals are brought 
cases from District courts, a further appeal lying, in some classes 
of cases, to the Supreme court, to which moreover, in certain 
cases, a direct appeal from the District courts may still be 
brought. There was formerly a Circuit court, but that court 
was abolished in 1912 and its jurisdiction transferred to the 
District courts. 

The District courts are the fourth and lowest class of 
Federal tribunals. They were in 1910 eighty-eight in number, 
and their judges receive salaries of $6000 per annum. The 
Constitution does not expressly state whether they and the 
Circuit judges are to be appointed by the President and Senate 
like the members of the Supreme court; but it has always been 
assumed that such was the intention, and the appointments 
are so made accordingly. 

For the purpose of dealing with the claims of private persons 
against the Federal government there has been established in 
Washington a special tribunal called the Court of Claims, with a 
chief-justice (salary $6500) and four other justices (salary $6000), 
from which an appeal lies direct to the Supreme court. 

A Court of Customs Appeals was created under the Tariff 
Act of 1909 to decide questions relating to customs duties. It 
consists of a presiding judge and four associates (salary $10,000). 

The jurisdiction of the Federal courts extends to the following 
classes of cases, on each of which I say no more than what seems 
absolutely necessary to explain their nature. 1 All other cases 
have been left to the State courts, from which there does not lie 
(save as hereinafter specified) any appeal to the Federal courts. 

1. “ Cases in law and equity arising under the constitution, 
the laws of the United States, and treaties made under their 
authority.” 

1 “ All the enumerated cases of Federal cognizance are those which touch 
the safety, peace, and sovereignty of the nation, or which presume that State 
attachments, State prejudices, State jealousies, and State interests might 
sometimes obstruct or control the regular administration of justice. The 
appellate power in all these cases is founded on the clearest principles of policy 
and wisdom, and is necessary in order to preserve uniformity of decision upon 



CHAP. XXII 


THE FEDERAL COURTS 


233 


In order to enforce the supremacy of the national Constitu¬ 
tion and laws over all State laws, it was necessary to place the 
former under the guardianship of the national judiciary. This 
provision accordingly brings before a Federal court every cause 
in which either party to a suit relies upon any Federal enact¬ 
ment (including the Constitution and a treaty as well as a Federal 
Statute). It entitles a plaintiff who bases his case on a Federal 
statute to bring his action in a Federal court: it entitles a defendant 
who rests his defence on a Federal enactment to have the action, 
if originally brought in a State court, removed to a Federal 
court. 1 But, of course, if the action has originally been brought 
in a State court, there is no reason for removing it unless the 
authority of the Federal enactment can be supposed to be ques¬ 
tioned. Accordingly, the rule laid down by the Judiciary Act 
(1789) provides “for the removal to the supreme court of the 
United States of the final judgment or decree in any suit, ren¬ 
dered in the highest court of law or equity of a State in which 
a 4 decision could be had, in which is drawn in question the 
validity of a treaty or statute of, or authority exercised under, 
the United States, and the decision is against their validity; 
or where is drawn in question the validity of a statute of, or an 
authority exercised under, any State, on the ground of their 
being repugnant to the Constitution, treaties, or laws of the 
United States, and the decision is in favour of their validity; 
or where any title, right, privilege, or immunity is claimed under 
the Constitution, or any treaty or statute or a commission 
held or authority exercised under the United States, and the 
decision is against the title, right, privilege, or immunity specially 
set up or claimed by either party under such Constitution, treaty, 
statute, commission, or authority. But to authorize the removal 
under that act, it must appear by the record, either expressly 
or by clear and necessary intendment, that some one of the 
enumerated questions did arise in the State court, and was there 
passed upon. It is not sufficient that it might have arisen 
or been applicable. And if the decision of the State court is in 
favour of the right, title, privilege, or exemption so claimed, the 
Judiciary Act does not authorize such removal, neither does it 

all subjects within the purview of the Constitution.” Kent’s Commentaries 
(Holmes’ edition), vol. i. p. 320. 

i The removal-may be before or after judgment given, and in the latter 
event, by way of appeal or by writ of error. 




234 


THE NATIONAL GOVERNMENT 


PART f 


where the validity of the State law is drawn in question, and the 
decision of the State court is against its validity.” 1 

The rule seems intricate, but the motive for it and the work¬ 
ing of it are plain. Where in any legal proceeding a Federal 
enactment has to be construed or applied by a State court, if 
the latter supports the Federal enactment, i.e. considers it to 
govern the case,'and applies it accordingly, the supremacy of 
Federal law is thereby recognized and admitted. There is 
therefore no reason for removing the case to a Federal tri¬ 
bunal. Such a tribunal could do no more to vindicate Federal 
authority than the State court has already done. But if the 
decision of the State court has been against the applicability of 
the Federal law, it is only fair that the party who suffers by 
the decision should be entitled to Federal determination of the 
point, and he has accordingly an absolute right to carry it 
before the Supreme court. 2 

The principle of this rule is applied even to executive acts 
of the Federal authorities. If, for instance, a person has been 
arrested by a Federal officer, a State court has no jurisdiction 
to release him on a writ of habeas corpus , or otherwise to inquire 
into the lawfulness of his detention by Federal authority, because, 
as was said by Chief-Justice Taney, “The powers of the general 
government and of the State, although both exist and are 
exercised within the same territorial limits, are yet separate and 
distinct sovereignties, acting separately and independently of 
each other, within their respective spheres. And the sphere of 
action appropriated to the United States is as far beyond the 
reach of the judicial process issued by a State court as if the line 
of division was traced by landmarks and monuments visible to 
the eye.” 3 

1 Cooley, Constitutional Limitations, p. 16. For details regarding the re¬ 
moval of suits, and the restrictions when the amount in dispute is small, see 
Cooley, Principles of Constitutional Law, p. 122 sqq.; and see also the Act of 
3d March 1887. 

2 Federal legislation may however be in a given case needed in order to con¬ 
fer upon Federal courts jurisdiction over cases arising under a treaty. The 
question arose in the case of the lynching of certain Italians at New Orleans 
in 1891. The Italian Government in its complaints appealed to the treaty of 
1871 between the United States and Italy, but it seems to have been held that 
Congress had not legislated so as to enable Federal courts to deal with offences 
in breach of that treaty. In his Inaugural Address (March 1909), President 
Taft suggested that legislation was urgently needed for increasing the power 
of the Executive to secure due protection in the States to foreign residents. 

3 Ableman v. Booth, 21 How. 516. 



CHAP. XXII 


THE FEDERAL COURTS 


235 


2. “ Cases affecting ambassadors, other public ministers, and 
consuls.” 

As these persons have an international character, it would 
be improper to allow them to be dealt with by a State court 
which has nothing to do with the national government, and 
for whose learning and respectability there may exist no such 
securities as those that surround the Federal courts. 

3. “Cases of admiralty and maritime jurisdiction.” 

These are deemed to include not only prize cases but all mari¬ 
time contracts, and all transactions relating to navigation, 
as well on the navigable lakes and rivers of the United States 
as on the high seas. 

4. “Controversies to which the United States shall be a 
party.” 

This provision is obviously needed to protect the United 
States from being obliged to sue or be sued in a State court, to 
whose decision the national government could not be expected 
to submit. When a pecuniary claim is sought to be estab¬ 
lished against the Federal government, the proper tribunal is 
the Court of Claims. 

5. “Controversies between two or more States, between a 
State and citizens of another State, between citizens of dif¬ 
ferent States, between citizens of the same State claiming 
lands under grants of different States, and between a State, 
or the citizens thereof, and foreign States, citizens, or subjects.” 

In all these cases a State court is likely to be, or at any rate 
to seem, a partial tribunal, and it is therefore desirable to vest 
the jurisdiction in judges equally unconnected with the plain¬ 
tiff and the defendant. By securing recourse to an unbiassed 
and competent tribunal, the citizens of every State obtain bet¬ 
ter commercial facilities than they could otherwise count upon, 
for their credit will stand higher with persons belonging to other 
States if the latter know that their legal rights are under the 
protection, not of local and possibly prejudiced judges, but 
of magistrates named by the national government, and un¬ 
amenable to local influences. 1 

One important part of the jurisdiction here conveyed has 

1 There are countries in Europe with which foreign merchants are unwilling 
to do business because they can seldom obtain justice against a native.. Local 
feeling was, of course, much stronger in the America of 1787 than it is now. 
Englishmen who had claims against American citizens failed to obtain their 
enforcement from 1783 till the Federal courts were established in 1789. 




236 


THE NATIONAL GOVERNMENT 


PART I 


been subsequently withdrawn from the Federal judicature. 
When the Constitution was submitted to the people, a principal 
objection urged against it was that it exposed a State, although 
a sovereign commonwealth, to be sued by the individual citi¬ 
zens of some other State. That one State should sue another 
was perhaps necessary, for what other way could be discovered 
of terminating disputes? But the power as well as the dig¬ 
nity of a State would be gone if it could be dragged into court 
by a private plaintiff. Hamilton (writing in the Federalist ) 
met the objection by arguing that the jurisdiction-giving clause 
of the Constitution ought not to be so construed, but must 
be read as being subject to the general doctrine that a sovereign 
body cannot be sued by an individual without its own consent, 
a doctrine not to be excluded by mere implication but only by 
express words. 1 However, in 1793 the Supreme court, in the 
famous case of Chisholm v. The State of Georgia , 2 construed 
the Constitution in the very sense which Hamilton had denied, 
holding that an action did lie against Georgia at the suit of a 
private plaintiff; and when Georgia protested and refused to 
appear, the court proceeded (in 1794) to give judgment against 
her by default in case she should not appear and plead before 
a day fixed. Her cries of rage filled the Union, and brought 
other States to her help. An amendment (the eleventh) to 
the Constitution was passed through Congress and duly accepted 
by the requisite majority of the States, which declares that 
“the judicial power of the United States shall not be construed 
to extend to any suit commenced or prosecuted against one of the 
United States by citizens of another State or by citizens or 
subjects of any foreign state.” 3 Under the protection of this 
amendment, several with impunity repudiated their debts. 

The jurisdiction of the Supreme- court is original in cases 
affecting ambassadors, and wherever a State is a party; in 
other cases it is appellate; that is, cases may be brought to it 

1 Federalist, No. lxxxi. The same view was contemporaneously maintained 
by John Marshall (afterwards Chief-Justice) in the Virginia Convention of 
1788. 

2 2 Dali. 419. 

3 It has been held that the amendment applies only when a State is a party 
to the record, and therefore does not apply to the case of a State holding shares 
in a corporation. Neither does it apply to appeals and writs of error. It is 
held to include suits against a State by one of its o-ftm citizens. 

In 1892 the Supreme court decided (by a large majority) in the case of 
United States v. Texas that the United States can sue a State. 



CHAP. XXII 


THE FEDERAL COURTS 


237 


from the inferior Federal courts and (under the circumstances 
before mentioned) from State courts. The jurisdiction is in 
some matters exclusive, in others concurrent with that of the 
State courts. Upon these subjects there have arisen many 
difficult and intricate questions, which I must pass by, because 
they would be unintelligible without long explanations. 1 One 
point, however, may be noted. The State courts cannot be in¬ 
vested by Congress with any jurisdiction, for Congress has no 
authority over them, and is not permitted by the Constitution 
to delegate any judicial powers to them. Hence the jurisdic¬ 
tion of a State court, wherever it is concurrent with that of 
Federal judges, is a jurisdiction which the court possesses of 
its own right, independent of the Constitution. And in some 
instances where congressional statutes have purported to im¬ 
pose duties on State courts, the latter have refused to accept 
and discharge them. 

The criminal jurisdiction of the Federal courts, which extends 
to all offences against Federal law, is purely statutory. “The 
United States as such can have no common law. It derives its 
powers from the grant of the people made by the Constitution, 
and they are all to be found in the written law, and not else¬ 
where/’ 2 

The procedure of the Federal courts is prescribed by Congress, 
subject to some few rules contained in the Constitution, such as 
those which preserve the right of trial by jury in criminal cases 3 
and suits at common law. 4 As “cases in law and equity” are 
mentioned, it is held that Congress could not accomplish such 
a fusion of law and equity as has been effected in several States 
of the Union, and was effected in England in 1873, but must 
maintain these methods of procedure as distinct, though ad¬ 
ministered by the same judges. 

The law applied in the Federal courts is of course first and 
foremost that enacted by the Federal legislature, which, when 
it is applicable, prevails against any State law. But very often, 
as for instance in suits between citizens of different States, 
Federal law does not, or does only in a secondary way, come 


i The lawyer curious in such matters may consult Story’s Commentaries on 
the Constitution, chapter xxxviii., and the judgments of Chief-Justice Marshall 
in the cases of Martin v. Hunter (1 Wheat. 304) and Cohens v. Virginia (6 


Wheat. 406). 

2 Cooley, Principles, p. 131. 


3 Art. iii. § 2. 4 Amendment vii. § 1. 



238 


THE NATIONAL GOVERNMENT 


PART I 


in question. In such instances the first thing is to determine 
what law it is that ought to govern the case, each State having 
a law of its own; and when this has been ascertained, it is 
applied to the facts, just as an English court would apply 
French or Scotch law in pronouncing on the validity of a mar¬ 
riage contracted in France or Scotland. In administering the 
law of any State (including its constitution, its statutes, and 
its common law, which in Louisiana is the civil law in its French 
form) the Federal courts ought to follow the decisions of the 
State courts, treating those decisions as the highest authority 
on the law of the particular State. This doctrine is so fully 
applied that the Supreme court has even over-ruled its own 
previous determinations on a point of State law in order to 
bring itself into agreement with the view of the highest court 
of the particular State. Needless to say, the State courts fol¬ 
low the decisions of the Federal courts upon questions of Fed¬ 
eral law. 1 

For the execution of its powers each Federal court has at¬ 
tached to it an officer called the United States marshal, cor¬ 
responding to the sheriff in the State governments, whose duty 
it is to carry out its writs, judgments, and orders by arresting 
prisoners, levying execution, putting persons in possession, and 
so forth. He is entitled, if resisted, to call on all good citizens 
for help; if they will not or cannot render it, he must refer to 
Washington and obtain the aid of Federal troops. There exists 
also in every judiciary district a Federal public;prosecutor, 
called the United States district attorney, who institutes pro¬ 
ceedings against persons transgressing Federal laws or evading 
the discharge of obligations to the Federal treasury. Both sets 
of officials are under the direction of the attorney-general, as 
head of the department of justice. They constitute a net-work 
of Federal authorities covering the whole territory of the Union, 
and independent of the officers of the State courts and of the 
public prosecutors who represent the State governments. 


1 1 The judicial department of every government is the appropriate organ 
for construing the legislative acts of that government. . . . On this principle 
the construction given by this (the supreme) court to the Constitution and 
laws of the United States is received by all as the true construction ; and on 
the same principle the construction given by the courts of the various States to 
the legislative acts of those States is received as true, unless they come in con¬ 
flict with the Constitution, laws, or treaties of the United States.” — Marshall, 
C.-J., in Elmendorf v. Taylor, 10 Wheat. 109. 



CHAP. XXII 


THE FEDERAL COURTS 


239 


Where a State maintains a gaol for thj reception of Federal 
prisoners, the U. S. marshal delivers his prisoners to the State 
gaoler; where this provision is wanting, he must himself ar¬ 
range for their custody. 

The European reader may ask how it is possible to work a 
system so extremely complex, under which every yard of ground 
in the Union is covered by two jurisdictions, with two sets of 
judges and two sets of officers, responsible to different superiors, 
their spheres of action divided only by an ideal line, and their 
action liable in practice to clash. The answer is that the sys¬ 
tem does work, and now, after an experience of four genera¬ 
tions, works smoothly. It is more costly than the simpler 
systems of France, Prussia, or England, though, owing to the 
small salaries paid, the expense falls rather on litigants than on 
the public treasury. But it leads to few conflicts or heart¬ 
burnings, because the key to all difficulties is found in the 
principle that wherever Federal law is applicable Federal law 
must prevail, and that every suitor who contends that Federal 
law is applicable is entitled to have the point determined by a 
Federal court. The acumen of the lawyers and judges, the 
wealth of accumulated precedents, make the solution of these 
questions of applicability and jurisdiction easier than a Euro¬ 
pean practitioner can realize: while the law-fespecting habits 
of the people and their sense that the supremacy of Federal law 
and jurisdiction works to the common benefit of the whole 
people, secure general obedience to Federal judgments. The 
enforcement of the law, especially the criminal law, in some 
parts of America leaves much to be desired; but the difficulties 
which arise are now due not to conflicts between State and 
Federal pretensions but to other tendencies equally hostile to 
both authorities. 

A word in conclusion as to the separation of the judicial 
from the other two departments, a point on which the framers 
of the Constitution laid great stress. The functions of the 
legislature are more easily distinguished from those of the 
judiciary than from those of the executive. The legislature 
makes the law, the judiciary applies it to particular cases by 
investigating the facts and, when these have been ascertained, 
by declaring what rule of law governs them. Nevertheless 
there are certain points in which the two departments touch, 
certain ground debatable between the judiciary on the one 



240 


THE NATIONAL GOVERNMENT 


PAKT 1 


hand and the legislature on the other. In most countries the 
courts have grown out of the legislature; or rather, the sover¬ 
eign body, which, like Parliament, was originally both a law 
court and a legislature, has delivered over the bulk of its judi¬ 
cial duties to other persons, while retaining some few to be 
still exercised by itself. 

America has in general followed the principles and practice 
of England. Like England, she creates no separate administra¬ 
tive tribunals such as exist in the states of the European con¬ 
tinent, but allows officials to be sued in or indicted before 
the ordinary courts. Like England, she has given the judges 
(■ i.e . the Federal judges) a position secured against the caprice 
of the legislature or executive. Like England, she recognizes 
judicial decisions as law until some statute has set them aside. 
In one respect she has improved on England — viz. in forbid¬ 
ding the legislature to exercise the powers of a criminal court, 
by passing acts of attainder or of pains and penalties, measures 
still legal, though virtually obsolete, in England. 1 In others 
she diverges from England. England has practically ceased to 
use one branch of her Parliament as a court for the trial of 
impeachments. America still occasionally throws upon one 
House of Congress this function; which, though it is ill suited 
to an ordinary court of justice, is scarcely better discharged by 
a political assembly. England has remitted to the courts of 
law the trial of disputed parliamentary elections; America still 
reserves these for Congress, and allows them to be disposed 
of by partisan votes, often with little regard to the merits. 
Special and local bills which vest in private hands certain 
rights of the State, such as public franchises, or the power 
of taking private property against the owner’s will, are, though 
in form exercises of legislative power, really fitter to be exam¬ 
ined and settled by judicial methods than by the loose opinion, 
the private motives, the lobbying, which determine legislative 
decisions where the control of public opinion is insufficiently 
provided for. England accordingly, though she refers such 
bills to committees of Parliament, directs these committees to 
apply a quasi-judicial procedure, and to decide according to the 
evidence tendered. America takes no such securities, but han- 

1 Neither House of Congress can punish a witness for contempt, after the 
fashion of the British Parliament (Kilbourn v. Thompson, 103 U. S. p. 168). 
See note to Chapter XXXIII. post. 




CHAP. XXII 


THE FEDERAL COURTS 


241 


dies these bills like any others. Here therefore we see three 
pieces of ground debatable between the legislature and the 
judiciary. All of them originally belonged to the legislature. 
All in America still belong to it. England, however, has aban¬ 
doned the first, has delivered over the second to the judges, 
and treats the third as matter to be dealt with by judicial 
rather than legislative methods. Such points of difference 
are worth noting, because the impression has prevailed in 
Europe that America is the country in which the province of 
the judiciary has been most widely extended. 



CHAPTER XXIII 


THE COURTS AND THE CONSTITUTION 

No feature in the government of the United States has 
awakened so much curiosity in the European mind, caused so 
much discussion, received so much admiration, and been more 
frequently misunderstood, than the duties assigned to the 
Supreme Court and the functions which it discharges in guard¬ 
ing the ark of the Constitution. Yet there is really no mystery 
about the matter. It is not a novel device. It is not a com¬ 
plicated device. It is the simplest thing in the world if ap¬ 
proached from the right side. 

In England and many other modern States there is no differ¬ 
ence in authority between one statute and another. All are 
made by the legislature : all can be changed by the legislature. 
What are called in England constitutional statutes, such as 
Magna Charta, the Bill of Rights, the Act of Settlement, the 
Acts of Union with Scotland and Ireland, are merely ordinary 
laws, which could be repealed by Parliament at any moment in 
exactly the same way as it can repeal a highway act or lower 
the duty on tobacco. 1 The habit has grown up of talking of 
the British Constitution as if it were a fixed and definite thing. 
But there is in England no such thing as a Constitution apart 
from the rest of the law: there is merely a mass of law, con¬ 
sisting partly of statutes and partly of decided cases and ac¬ 
cepted usages, in conformity with which the government of 
the country is carried on from day to day, but which is being 
constantly modified by fresh statutes and cases. The same 
thing existed in ancient Rome, and everywhere in Europe a 
century ago. It is, so to speak, the “natural,” and used to be 
the normal, condition of things in all countries, free or despotic. 

1 This doctrine, although long since well settled, would not have been gener¬ 
ally accepted in the beginning of the seventeenth century. As Sir Thomas 
More had maintained that an Act of Parliament could not make the king 
supreme head of the Church, so Coke held that the Common Law controlled 
Acts of Parliament and adjudged them void when against common right. 

242 


chap, xxiii THE COURTS AND THE CONSTITUTION 243 


The condition of America is wholly different. There the 
name Constitution designates a particular instrument adopted 
in 1788, amended in some points since, which is the foundation 
of the national government. This Constitution was ratified 
and made binding, not by Congress, but by the people acting 
through conventions assembled in the thirteen States which 
then composed the Confederation. It created a legislature of 
two houses; but that legislature, which we call Congress, has 
no power to alter it in the smallest particular. That which the 
people have enacted, the people only can alter or repeal. 

Here therefore we observe two capital differences between 
England and the United States. The former has left the out¬ 
lines . as well as the details of her system of government to be 
gathered from a multitude of statutes and cases. The latter 
has drawn them out in one comprehensive fundamental enact¬ 
ment. The former has placed these so-called constitutional 
laws at the mercy of her legislature, which can abolish when 
it pleases any institution of the country, the Crown, the House 
of Lords, the Established Church, the House of Commons, Par¬ 
liament itself. 1 The latter has placed her Constitution alto¬ 
gether out of the reach of Congress, providing a method of 
amendment whose difficulty is shown by the fact that it has 
been very sparingly used. 

In England Parliament is omnipotent. In America Congress 
is doubly restricted. It can make laws only for certain pur¬ 
poses specified in the Constitution, and in legislating for these 
purposes it must not transgress any provision of the Constitu¬ 
tion itself. The stream cannot rise above its source. 

Suppose, however, that Congress does so transgress, or does 
overpass the specified purposes. It may do so intentionally: 
it is likely to do so inadvertently. What happens? If the 
Constitution is to be respected, there must be some means of 
securing it against Congress. If a usurpation of power is at- 

1 Parliament of course cannot restrict its own powers by any particular Act 
because that Act might be repealed in a subsequent session, and indeed any 
subsequent Act inconsistent with any of its provisions repeals ipso facto that 
provision. (For instance, the Act of Union with Scotland (6 Anne, c. 11) 
declared certain provisions of the Union, for the establishment of Presbyterian 
church government in Scotland, to be “essential and fundamental parts of 
the Union,” but some of those provisions have been altered by subsequent 
statutes.) Parliament could, however, extinguish itself by formally dissolving 
itself, leaving no legal means whereby a subsequent Parliament could be 
summoned. 




244 


THE NATIONAL GOVERNMENT 


PART I 


tempted, how is it to be checked ? If a mistake is committed, 
who sets it right ? 

The point may be elucidated by referring it to a wider cate¬ 
gory, familiar to lawyers and easily comprehensible by laymen, 
that of acts done by an agent for a principal. If a landowner 
directs his bailiff to collect rents for him, or to pay debts due 
to tradesmen, the bailiff has evidently no authority to bind his 
employer by any act beyond the instructions given him, as, for 
instance, by contracting to buy a field. If a manufacturer 
directs his foreman to make rules for the hours of work and 
meals in the factory, and the foreman makes rules not only for 
those purposes, but also prescribing what clothes the workmen 
shall wear and what church they shall attend, the latter rules 
have not the force of the employer’s will behind them, and the 
workmen are not to be blamed for neglecting them. 

The same principle applies to public agents. In every coun¬ 
try it happens that acts are directed to be done and rules to be 
made by bodies which are in the position of agents, i.e. which 
have received from some superior authority a limited power of 
acting and of rule-making, a power to be used only for certain 
purposes or under certain conditions. Where this power is 
duly exercised, the act or rule of the subordinate body has all 
the force of an act done or rule made by the superior author¬ 
ity, and is deemed to be made by it. And if the latter be a 
law-making body, the rule of the subordinate body is therefore 
also a law. But if the subordinate body attempts to transcend 
the power committed to it, and makes rules for other purposes 
or under other conditions than those specified by the superior 
authority, these rules are not law, but are null and void. Their 
validity depends on their being within the scope of the law¬ 
making power conferred by the superior authority, and as 
they have passed outside that scope they are invalid. They 
do not justify any act done under them forbidden by the ordi¬ 
nary law. They ought not to be obeyed or in any way regarded 
by the citizens, because they are not law. 

The same principle applies to acts done by an executive 
officer beyond the scope of his legal authority. In free coun¬ 
tries an individual citizen is justified in disobeying the orders of 
a magistrate if he correctly thinks these orders to be in excess 
of the magistrate’s legal power, because in that case they are 
not really the orders of a magistrate, but of a private person 



chap, xxiii THE COURTS AND THE CONSTITUTION 245 


affecting to act as a magistrate. In England, for instance, if 
a secretary of state, or a police constable, does any act which 
the citizen affected by it rightly deems unwarranted, the citi¬ 
zen may resist, by force if necessary, relying on the ordinary 
courts of the land to sustain him. This is a consequence of 
the English doctrine that all executive power is strictly limited 
by the law, and is indeed a corner-stone of English liberty. 1 
It is applied even as against the dominant branch of the legis¬ 
lature. If the House of Commons should act in excess of 
the power which the law and custom of Parliament has secured 
to it, a private individual may resist the officers of the House 
and the courts will protect him by directing him to be acquitted 
if he is prosecuted, or, if he is plaintiff in a civil action, by giv¬ 
ing judgment in his favour. 

An obvious instance of the way in which rules or laws made 
by subordinate bodies are treated is afforded by the bye-laws 
made by an English railway company or municipal corpora¬ 
tion under powers conferred by an Act of Parliament. So 
long as these bye-laws are within the scope of the authority 
which the Act of Parliament has given, they are good, i.e. they 
are laws, just as much as if enacted in the Act. If they go 
beyond it, they are bad, that is to say, they bind nobody and 
cannot be enforced. If a railway company which has received 
power to make bye-laws imposing fines up to the amount of 
forty shillings, makes a bye-law punishing any person who 
enters or quits a train in motion with a fine of fifty shillings 
or a week's imprisonment, that bye-law is invalid, that is to 
say, it is not law at all, and no magistrate can either imprison 
or impose a fine of fifty shillings on a person accused of con¬ 
travening it. If a municipal corporation has been by statute 
empowered to enter into contracts for the letting of lands 
vested in it, and directed to make bye-laws, for the purpose of 
letting, which must provide, among other things, for the adver¬ 
tising of all lands intended to be let, and if it makes a bye-law 
in which no provision is made for advertising, and under that 
bye-law contracts for the letting of a piece of land, the letting 
made in pursuance of this bye-law is void, and conveys no title 
to the purchaser. All this is obvious to a lay as well as to a 

1 See as to the different doctrine and practice of the European continent, and 
particularly as to the “ administrative law” of France, the instructive remarks 
of Mr. Dicey in his Law of the Constitution. 



246 


THE NATIONAL GOVERNMENT 


PART I 


legal mind; and it is no less obvious that the question of the 
validity of the bye-law, and of what has been done under it, 
is one to be decided not by the municipal corporation or com¬ 
pany, but by the courts of justice of the land. 

Now, in the United States the position of Congress may for 
this purpose be compared to that of an English municipal cor¬ 
poration or railway company. The supreme law-making power 
is the People, that is, the qualified voters, acting in a prescribed 
way. The people have by their supreme law, the Consti¬ 
tution, given to Congress a delegated and limited power of 
legislation. Every statute passed under that power conform¬ 
ably to the Constitution has all the authority of the Consti¬ 
tution behind it. Any statute passed which goes beyond that 
power is invalid, and incapable of enforcement. It is in fact 
not a statute at all, because Congress in passing it was not really 
a law-making body, but a mere group of private persons. 

Says Chief-Justice Marshall, “The powers of the legislature 
are defined and limited ; and that those limits may not be mis¬ 
taken or forgotten, the Constitution is written. To what pur¬ 
pose are powers limited and to what purpose is that limitation 
committed to writing, if those limits may at any time be passed 
by those intended to be restrained ? The Constitution is either 
a superior paramount law, unchangeable by ordinary means, or 
it is on a level with ordinary legislative acts, and like any other 
acts, is alterable when the legislature shall please to alter it. 
If the former part of the alternative be true, then a legislative 
act contrary to the Constitution is not law. If the latter part 
be true, then written constitutions are absurd attempts on the 
part of the people to limit a power in its own nature illimitable.” 
There is of course this enormous difference between Congress 
and any subordinate law-making authority in England, that 
Congress is supreme within its proper sphere, the people having 
no higher permanent organ to override or repeal such statutes 
as Congress may pass within that sphere; whereas in England 
there exists in Parliament a constantly present supervising 
authority, which may at any moment cancel or modify what any 
subordinate body may have enacted, whether within or without 
the scope of its delegated powers. This is a momentous distinc¬ 
tion. But it does not affect the special point which I desire to 
illustrate, viz. that a statute passed by Congress beyond the 
scope of its powers is of no more effect than a bye-law made 



chap, xxiii THE COURTS AND THE CONSTITUTION 247 


ultra vires by an English municipality. There is no mystery 
so far : there is merely an application of the ordinary principles 
of the law of agency. But the question remains, How and by 
whom, in case of dispute, is the validity or invalidity of a statute 
to be determined ? 

Such determination is to be effected by setting the statute 
side by side with the Constitution, and considering whether 
there is any discrepancy between them. Is the purpose of the 
statute one of the purposes mentioned or implied in the Con¬ 
stitution? Does it in pursuing that purpose contain anything 
which violates any clause of the Constitution? Sometimes 
this is a simple question, which an intelligent layman may 
answer. More frequently it is a difficult one, which needs not 
only the subtlety of the trained lawyer, but a knowledge of 
former cases which have thrown light on the same or a similar 
point. In any event it is an important question, whose solution 
ought to proceed from a weighty authority. It is a question 
of interpretation, that is, of determining the true meaning both 
of the superior law and of the inferior law, so as to discover 
whether they are inconsistent. 

Now the interpretation of laws belongs to courts of justice. 
A law implies a tribunal, not only in order to direct its enforce¬ 
ment against individuals, but to adjust it to the facts, i.e. to 
determine its precise meaning and apply that meaning to the 
circumstances of the particular case. The legislature, which 
can only speak generally, makes every law in reliance on this 
power of interpretation. It is therefore obvious that the 
question, whether a congressional statute offends against the 
Constitution, must be determined by the courts, not merely 
because it is a question of legal construction, but because there 
is nobody else to determine it. Congress cannot do so, because 
Congress is a party interested. If such a body as Congress 
were permitted to decide whether the acts it had passed were 
constitutional, it would of course decide in its own favour, and 
to allow it to decide would be to put the Constitution at its 
mercy. The President cannot, because he is not a lawyer, and 
he also may be personally interested. There remain only the 
courts, and these must be the National or Federal courts, be¬ 
cause no other courts can be relied on in such cases. So far 
again there is no mystery about the matter. 

Now, however, we arrive at a feature which complicates the 



248 


THE NATIONAL GOVERNMENT 


PART I 


facts, although it introduces no new principle. The United 
States is a federation of commonwealths, each of which has its 
own constitution and laws. The Federal Constitution not 
only gives certain powers to Congress, as the national legis¬ 
lature, but recognizes certain powers in the States, in virtue 
whereof their respective peoples have enacted fundamental 
State laws (the State constitutions) and have enabled their 
respective legislatures to pass State statutes. However, as 
the nation takes precedence of the States, the Federal Consti¬ 
tution, which is the supreme law of the land everywhere, and 
the statutes duly made by Congress under it, are preferred to 
all State constitutions and statutes; and if any conflict arise 
between them, the latter must give way. The same phenom¬ 
enon therefore occurs as in the case of an inconsistency be¬ 
tween the Constitution and a congressional statute. Where it 
is shown that a State constitution or statute infringes either 
the Federal Constitution or a Federal (i.e. congressional) 
statute, the State constitution or statute must be declared 
invalid. And this declaration must, of course, proceed from 
the courts, nor solely from the Federal courts; because when 
a State court decides against its own statutes or constitution 
in favour of a Federal law, its decision is final. 

It will be observed that in all this there is no conflict between 
the law courts and any legislative body. The conflict is between 
different kinds of laws. The duty of the judges is as strictly 
confined to the interpretation of the laws cited to them as it is 
in England or France ; and the only difference is that in America 
there are laws of four different degrees of authority, whereas 
in England all laws (excluding mere bye-laws, Privy Council 
ordinances, etc.) are equal because all proceed from Parliament. 
These four kinds of American laws are : — 

I. The Federal Constitution. 

II. Federal statutes. 

III. State constitutions. 

IV. State statutes. 1 


1 Of these, the Federal Constitution prevails against all other laws. Federal 
statutes, if made in pursuance of and conformably to the Constitution, prevail 
against III. and IV. If in excess of the powers granted by the Constitution, 
they are to that extent invalid. A State constitution yields to I. and II., but 
prevails against the statutes of the State. 

Treaties have the same authority as Federal statutes (they may be altered 



chap, xxiii THE COURTS AND THE CONSTITUTION 249 


The American law court therefore does not itself enter on 
any conflict with the legislature. It merely secures to each 
kind of law its due authority. It does not even preside over 
a conflict and decide it, for the relative strength of each kind 
of law has been settled already. All the court does is to declare 
that a conflict exists between two laws of different degrees 
of authority. Then the question is at an end, for the weaker 
law is extinct, or, to put the point more exactly, a flaw has been 
indicated which makes the world see that if the view of the court 
be correct, the law is in fact null. The court decides nothing 
but the case before it: and any one may, if he thinks the court 
wrong, bring up a fresh case raising again the question whether 
the law is valid. 1 

This is the abstract statement of the matter; but there is 
also an historical one. Many of the American colonies received 
charters from the British Crown, which created or recognized 
colonial assemblies, and endowed these with certain powers 
of making laws for the colony. Such powers were of course 
limited, partly by the charter, partly by usage, and were sub¬ 
ject to the superior authority of the Crown or of the British 
Parliament. Questions sometimes arose in colonial days whether 
the statutes made by these assemblies were in excess of the 
powers conferred by the charter ; and if the statutes were found 
to be in excess, they were held invalid by the courts, that is to 
say, in the first instance by the colonial courts, or, if the matter 
was carried to England, by the Privy Council. 2 

When the thirteen American colonies asserted their indepen¬ 
dence in 1776, they replaced these old charters by new consti¬ 
tutions, 3 and by these constitutions entrusted their respective 

by statute). It need hardly be said that executive or departmental orders made 
under powers conferred by a statute have statutory force. 

1 This happened in the Legal Tender question (see next chapter). But in 
ninety-nine instances out of a hundred, the legal profession and the public 
admit the correctness, and therewith the authority, of the view which the 
court has taken. The court has itself declared that its declaration of the 
unconstitutionality of a statute must nowise be taken as amounting to a repeal 
of that statute. See In re Rahrer, 140 U. S. Rep. p. 545. 

2 The same thing happens even now as regards the British colonies. The 
question was lately argued before the Privy Council whether the legislature of 
the Dominion of Canada, created by the British North America Act of 1867 
(an imperial statute), had power to extinguish the right of appeal from the 
supreme court of Canada to the British Queen in council. 

3 Connecticut and Rhode Island, however, went on under the old charters, 
with which they were well content. See as to this whole subject, Chapter 
XXXVII., on State Constitutions. 




250 


THE NATIONAL GOVERNMENT 


PART I 


legislative assemblies with certain specified and limited legis¬ 
lative powers. The same question was then liable to recur with 
regard to a statute passed by one of these assemblies. If such a 
statute was in excess of the power which the State constitu¬ 
tion conferred on the State legislature, or in any way trans¬ 
gressed the provisions of that constitution, it was invalid, and 
acts done under it were void. The question, like any other 
question of law, came for decision before the courts of the 
State. Thus, in 1786, the supreme court of Rhode Island 
held that a statute of the legislature which purported to make a 
penalty collectible on summary conviction, without trial by 
jury, gave the court no jurisdiction, i.e. was invalid, the colo¬ 
nial charter, which was then still in force as the constitution 
of the State, having secured the right of trial by jury in all 
cases. 1 When the Constitution of the United States came into 
operation in 1789, and was declared to be paramount to all 
State constitutions and State statutes, no new principle was 
introduced; there was merely a new application, as between 
the nation and the States, of the old doctrine that a subordi¬ 
nate and limited legislature cannot pass beyond the limits fixed 
for it. It was clear, on general principles, that a State law in¬ 
compatible with a duly enacted Federal law must give way; 
the only question was : What courts are to pronounce upon the 
question whether such incompatibility exists ? Who is to 
decide whether or no the authority given to Congress has been 
exceeded, and whether or no the State law contravenes the 
Federal Constitution or a Federal statute ? 

In 1787 the only then-existing courts were the State courts. 
If a case coming before them raised the point whether a State 
constitution or statute was inconsistent with the Federal Con¬ 
stitution or a statute of Congress, it was their duty to decide 
it, like any other point of law. But their decision could not 
safely be accepted as final, because, being themselves the off¬ 
spring of, and amenable to, the State governments, they would 
naturally tend to uphold State laws against the Federal Consti¬ 
tution or statutes. Hence it became necessary to set up courts 

1 In the case of Trevett v. Weeden, the first case of importance in which a 
legislative act was held unconstitutional for incompatibility with a State con¬ 
stitution, although the doctrine seems to have been laid down by the supreme 
court of New Jersey in Holmes v. Walton (1780), as well as in Virginia in 1782, 
and in New York in 1784. See Judge Elliott’s article in Political Science Quar¬ 
terly for June 1890, p. 233. 



chap, xxiii THE COURTS AND THE CONSTITUTION 251 


created by the central Federal authority and co-extensive with 
it — that is to say, those Federal courts which have been already 
described. The matter seems complicated, because we have 
to consider not only the superiority of the Federal Consti¬ 
tution to the Federal legislature but also the superiority of both 
the Federal Constitution and Federal statutes to all State laws. 
But the principle is the same and equally simple in both sets of 
cases. Both are merely instances of the doctrine, that a law¬ 
making body must not exceed its powers, and that when it has 
attempted to exceed its powers, its so-called statutes are not 
laws at all, and cannot be enforced. 

In America the supreme law-making power resides in the 
people. Whatever they enact is universally binding. All 
other law-making bodies are subordinate, and the enactments 
of such bodies must conform to the supreme law, else they 
will perish at its touch, as a fishing smack goes down before 
an ocean steamer. And these subordinate enactments, if at 
variance with the supreme law, are invalid from the first, 
although their invalidity may remain for years unnoticed or un¬ 
proved. It can be proved only by the decision of a court in 
a case which raises the point for determination. The phe¬ 
nomenon cannot arise in a country whose legislature is om¬ 
nipotent, but naturally 1 arises wherever we find a legislature 
limited by a superior authority, such as a constitution which 
the legislature cannot alter. 

In England the judges interpret Acts of Parliament exactly 
as American judges interpret statutes coming before them. If 
they find an Act conflicting with a decided case, they prefer 
the Act to the case, as being of higher authority. As between 
two apparently conflicting Acts, they prefer the later, because it 
is the last expression of the mind of Parliament. If they mis¬ 
interpret the mind of Parliament, i.e. if they construe an Act in 
a sense which Parliament may not have intended, their decision 
is nevertheless valid, and will usually be followed by other courts 

1 1 do not say “necessarily,” because there are countries on the European 
continent where, although there exists a constitution superior to the legislature, 
the courts are not allowed to hold a legislative act invalid, because the legis¬ 
lature is deemed to have the right of taking its own view of the constitution. 
This seems to be the case both in France and in Switzerland. So in the Ger¬ 
man Empire the Reichskammergericht cannot question an act of the imperial 
legislature ; and in Belgium, though it has been thought that the courts possess 
such a power, it is now held that they do not possess it. 



252 


THE NATIONAL GOVERNMENT 


i’AE.T 1 


of the same rank until Parliament speaks its mind again by 
another Act. The only difference between their position and 
that of their American brethren is that they never have to 
distinguish between the authority of one enactment and that 
of another, otherwise than by looking to the date, and that 
they therefore need never inquire whether an Act of Parliament 
was invalid when first passed. Invalid it could not have been, 
because Parliament is omnipotent, and Parliament is omnipo¬ 
tent because Parliament is deemed to be the people. Parlia¬ 
ment is not a body with delegated or limited authority. The 
whole fulness of popular power dwells in it. The whole 
nation is supposed to be present within its walls. 1 Its will 
is law; or, as Dante says in a famous line, “its will is Power.” 

There is a story told of an intelligent Englishman who, having 
heard that the Supreme Federal Court was created to protect 
the Constitution, and had authority given it to annul bad laws, 
spent two days in hunting up and down the Federal Constitu¬ 
tion for the provisions he had been told to admire. No won¬ 
der he did not find them, for there is not a word in the Con¬ 
stitution on the subject. The powers of the Federal courts 
are the same as those of all other courts in civilized countries, 
or rather they differ from those of other courts by defect and 
not by excess, being limited to certain classes of cases. The 
so-called “power of annulling an unconstitutional statute” 
is a duty rather than a power, and a duty incumbent on the 
humblest State court when a case raising the point comes be¬ 
fore it no less than on the Supreme Federal Court at Washing¬ 
ton. When therefore people talk, as they sometimes do, even 
in the United States, of the Supreme court as “the guardian 
of the Constitution,” they mean nothing more than that it 
is the final court of appeal, before which suits involving con¬ 
stitutional questions may be brought up by the parties for 

1 The old writers say that the reason why an Act of Parliament requires no 
public notification in the country is because it is deemed to be made by the 
whole nation, so that every person is present at the making of it. It is cer¬ 
tainly true that the orthodox legal view of Parliament never regards it as ex¬ 
ercising powers that can in any sense be called delegated. A remarkable 
example of the power which Parliament can exert as an ultimately and com¬ 
pletely sovereign body is afforded by the Septennial Act (1 Geo. I. st. 2, cap. 
38). By this statute a Parliament in which the House of Commons had been 
elected for three years only, under the Triennial Act then in force, prolonged, 
not only the possible duration of future Parliaments but its own term to seven 
years, taking to itself four years of power which the electors had not given it. 



chap, xxiii THE COURTS AND THE CONSTITUTION 253 


decision. In so far the phrase is legitimate. But the func¬ 
tions of the Supreme court are the same in kind as those of all 
other courts, State as well as Federal. Its duty and theirs is 
simply to declare and apply the law; and where any court, be 
it a State court of first instance, or the Federal court of last 
resort, finds a law of lower authority clashing with a law of 
higher authority, it must reject the former, as being really no 
law, and enforce the latter. 

It is therefore no mere technicality to point out that the 
American judges do not, as Europeans are apt to say, “ control 
the legislature,” but simply interpret the law. The word 
“control” is misleading, because it implies that the person or 
body of whom it is used possesses and exerts discretionary per¬ 
sonal Will. Now the American judges have no discretionary 
will in the matter any more than has an English court when it 
interprets an Act of Parliament. The will that prevails is 
the will of the people, expressed in the Constitution they en¬ 
acted. All that the judges have to do is to discover from the 
enactments before them what the will of the people is, and 
apply that will to the facts of a given case. The more general 
or ambiguous the language which the people have used, so 
much the more difficult is the task of interpretation, so much 
greater the need for ability and integrity in the judges. But 
the task is always the same in its nature. The judges have 
no concern with the motives or the results of an enactment, 
otherwise than as these may throw light on the sense in which 
the enacting authority intended it. It would be a breach of 
duty for them to express, I might almost say a breach of duty 
to entertain, an opinion on its policy except so far as its policy 
explains its meaning. They may think a statute excellent in 
purpose and working, but if they cannot find in the Constitu¬ 
tion a power for Congress to pass it, they must brush it aside 
as invalid. They may deem another statute pernicious, but if 
it is within the powers of Congress, they must enforce it. To 
construe the law, that is, to elucidate the will of the people as 
supreme lawgiver, is the beginning and end of their duty. 
And if it be suggested that they may overstep their duty, 
and may, seeking to make themselves not the exponents but 
the masters of the Constitution, twist and pervert it to suit 
their own political views, the answer is that such an exercise 
of judicial will would rouse the distrust and displeasure of the 




254 


THE NATIONAL GOVERNMENT 


PART I 


nation, and might, if persisted in, provoke resistance to the law 
as laid down by the court, possibly an onslaught upon the 
court itself. 

To insist upon the fact that the judiciary of the United States 
are not the masters of the Constitution but merely its inter¬ 
preters is not to minimize the importance of their functions, but 
to indicate their true nature. The importance of those func¬ 
tions can hardly be exaggerated. It arises from two facts. 
One is that as the Constitution cannot easily be changed, a 
bad decision on its meaning, i.e. a decision which the general 
opinion of the profession condemns, may go uncorrected. In 
England, if a court has construed a statute in a way unintended 
or unexpected, Parliament can set things right next session by 
amending the statute, and so* prevent future decisions to the 
same effect. But American history shows only one instance in 
which an unwelcome decision on the meaning of the Constitu¬ 
tion has been thus dealt with, viz. the decision, that a State 
could be sued by a private citizen, 1 which led to the eleventh 
amendment, whereby it was declared that the Constitution 
should not cover a case which the court had held it did cover. 

The other fact which makes the function of an American 
judge so momentous is the brevity, the laudable brevity, of the 
Constitution. The words of that instrument are general, lay¬ 
ing down a few large principles. The cases which will arise 
as to the construction of these general words cannot be foreseen 
till they arise. When they do arise the generality of the words 
leaves open to the interpreting judges a far wider field than is 
afforded by ordinary statutes which, since they treat of one 
particular subject, contain enactments comparatively minute 
and precise. Hence, although the duty of a court is only to 
interpret, the considerations affecting interpretation are more 
numerous than in the case of ordinary statutes, more delicate, 
larger in their reach and scope. They sometimes need the 
exercise not merely of legal acumen and judicial fairness, but 
of a comprehension of the nature and methods of government 
which one does not demand from the European judge who walks 
in the narrow path traced for him by ordinary statutes. It is 
therefore hardly an exaggeration to say that the American 

1 See the last preceding chapter. The doctrine of the Dred Scott case (of 
which more anon) was set aside by the fourteenth amendment, but that amend¬ 
ment was intended to effect much more than merely to correct the court. 



chap, xxiii THE COURTS AND THE CONSTITUTION 255 


Constitution as it now stands, with the mass of fringing deci¬ 
sions which explain it, is a far more complete and finished in¬ 
strument than it was when it came fire-new from the hands of 
the Convention. It is not merely their work but the work of 
the judges, and most of all of one man, the great Chief-Justice 
Marshall. 

The march of democracy in England has disposed some 
English political writers of the very school which in the last 
generation pointed to America as a terrible example, now 
to discover that her republic possesses elements of stability 
wanting in the monarchy of the mother country. They lament 
that England should have no supreme court. Some have even 
suggested that England should create one. They do not seem 
to perceive that the dangers they discern arise not from the 
want of a court but from the omnipotence of the British Par¬ 
liament. They ask for a court to guard the British Consti¬ 
tution, forgetting that Britain has no constitution, in the 
American sense, and never had one, except for a short space 
under Oliver Cromwell. The strongest court that might be 
set up in England could effect nothing so long as Parliament 
retains its power to change every part of the law, including 
all the rules and doctrines that are called constitutional. If 
Parliament were to lose that power there would be no need to 
create a supreme court, because the existing judges of the land 
would necessarily discharge the very functions which Ameri¬ 
can judges now discharge. If Parliament were to be split up 
into four parliaments for England, Scotland, Ireland, and 
Wales, and a new Federal Assembly were to be established 
with limited legislative powers, powers defined by an instru¬ 
ment which neither the Federal Assembly nor any of the four 
parliaments could alter, questions would forthwith aiise as to 
the compatibility both of acts passed by the Assembly with 
the provisions of the instrument, and of acts passed by any 
of the four parliaments with those passed by the Assembly. 
These questions would come before the courts and be deter¬ 
mined by them like any other question of law. The same 
thing would happen if Britain were to enter into a federal 
pact with her colonies, creating an imperial Council, and giv¬ 
ing it powers which, though restricted by the pact to certain 
purposes, transcended those of the British Parliament. The 
interpretation of the pact would belong to the courts, and 




256 


THE NATIONAL GOVERNMENT 


PART I 


both Parliament and the supposed Council would be bound by 
that interpretation. 1 If a new supreme court were created by 
Britain, it would be created not because there do not already 
exist courts capable of entertaining all the questions * that 
could arise, but because the parties to the new constitution 
enacted for the United Kingdom, or the British Empire (as 
the case might be), might insist that a tribunal composed of 
persons chosen by some Federal authority would be more 
certainly impartial. The preliminary therefore to any such 
“judicial safeguard” as has been suggested is the extinction 
of the present British Parliament and the erection of a wholly 
different body or bodies in its room. 

These observations may suffice to show that there is nothing 
strange or mysterious about the relation of the Federal courts 
to the Constitution. The plan which the Convention of 1787 
adopted is simple, useful, and conformable to general legal 
principles. It is, in the original sense of the word, an elegant 
plan. But it is not novel, as was indeed observed by Hamilton 
in the Federalist. It was at work in the States before the 
Convention of 1787 met. It was at work in the thirteen colo¬ 
nies before they revolted from England. It is an applica¬ 
tion of old and familiar legal doctrines. Such novelty as there 
is belongs to the scheme of a Supreme or Rigid constitution, 
reserving the ultimate power to the people, and limiting in 
the same measure the power of a legislature. 2 

It is nevertheless true that there is no part of the American 
system which reflects more credit on its authors or has worked 
better in practice. It has had the advantage of relegating 
questions not only intricate and delicate, but peculiarly liable 

1 Assuming of course that the power of altering the pact was reserved to 
some authority superior to either the Council or Parliament. 

2 So Mr. Wilson observed (speaking of the State constitutions) in the Penn¬ 
sylvania Convention of 1787 : “ Perhaps some politician who has not considered 
with sufficient accuracy our political systems would observe that in our gov¬ 
ernments the supreme power was vested in the constitutions. This opinion 
approaches the truth, but does not reach it. The truth is that in our govern¬ 
ments the supreme, absolute, and uncontrollable power remains in the people. 
As our constitutions are superior to our legislatures, so the people are superior 
to our constitutions.” — Elliot’s Debates, ii. 432. 

Mr. M’Kean, speaking in the same convention, quoted Locke’s Civil Gov¬ 
ernment (c. 2, § 140, and c. 13, § 152) as an authority for the proposition that 
the powers of Congress could be no greater than the positive grant might convey. 

As to Rigid Constitutions, see Chapter XXXI. post; and, for a fuller treat¬ 
ment, an essay in my Studies in History and Jurisprudence. 



chap, xxiii THE COURTS AND THE CONSTITUTION 257 


to excite political passions, to the cool, dry atmosphere of 
judicial determination. The relations of the central Federal 
power to the States, and the amount of authority which Con¬ 
gress and the President are respectively entitled to exercise, 
have been the most permanently grave questions in American 
history, with which nearly every other political problem has 
become entangled. If they had been left to be settled by 
Congress, itself an interested party, or by any dealings between 
Congress and the State legislatures, the dangers of a conflict 
would have been extreme, and instead of one civil war there 
might have been several. But the universal respect felt for 
the Constitution, a respect which grows the longer it stands, 
has disposed men to defer to any decision which seems honestly 
and logically to unfold the meaning of its terms. In obeying 
such a decision they are obeying, not the judges, but the people 
who enacted the Constitution. To have foreseen that the power 
of interpreting the Federal Constitution and statutes, and of 
determining whether or no State constitutions and statutes 
transgress Federal provisions, would be sufficient to prevent 
struggles between the National government and the State gov¬ 
ernments, required great insight and great faith in the sound¬ 
ness and power of a principle. While the Constitution was 
being framed the suggestion was made, and for a time seemed 
likely to be adopted, that a veto on the acts of State legislatures 
should be conferred upon the Federal Congress. Discussion 
revealed the objections to such a plan. Its introduction would 
have offended the sentiment of the States, always jealous of 
their autonomy; its exercise would have provoked collisions 
with them. The disallowance of a State statute, even if it did 
really offend against the Federal Constitution, would have 
seemed a political move, to be resented by a political counter¬ 
move. And the veto would often have been pronounced before 
it could have been ascertained exactly how the State statute 
would work, sometimes, perhaps, pronounced in cases where 
the statute was neither pernicious in itself nor opposed to the 
Federal Constitution. But by the action of the courts the self- 
love of the States is not wounded, and the decision declaring 
one of their laws invalid is nothing but a tribute to the higher 
authority of that supreme enactment to which they were them¬ 
selves parties, and which they may themselves desire to see 
enforced against another State on some not remote occasion, 
s 



258 


THE NATIONAL GOVERNMENT 


PART I 


However, the idea of a veto by Congress was most effectively 
demolished in the Convention by Roger Sherman, who acutely 
remarked that a veto would seem to recognize as valid the 
State statute objected to, whereas if inconsistent with the Con¬ 
stitution it was really invalid already and needed no veto. 

By leaving constitutional questions to be settled by the 
courts of law another advantage was incidentally secured. 
The court does not go to meet the question; it waits for the 
question to come to it. When the court acts it acts at the 
instance of a party. Sometimes the plaintiff or the defendant 
may be the National government or a State government, but 
far more frequently both are private persons, seeking to en¬ 
force or defend their private rights. For instance, in the 
famous case 1 which established the doctrine that a statute 
passed by a State repealing a grant of land to an individual 
made on certain terms by a previous statute is a law “ impair¬ 
ing the obligation of a contract,” and therefore invalid, under 
Art. i. § 10 of the Federal Constitution; the question came 
before the court on an action by one Fletcher against one Peck 
on a covenant contained in a deed made by the latter; and to 
do justice between plaintiff and defendant it was necessary to 
examine the validity of a statute passed by the legislature of 
Georgia. This method has the merit of not hurrying a ques¬ 
tion on, but leaving it to arise of itself. Full legal argument 
on both sides is secured by the private interests which the 
parties have in setting forth their contentions; and the deci¬ 
sion when pronounced, since it appears to be, as in fact it is, 
primarily a decision upon private rights, obtains that respect 
and moral support which a private plaintiff or defendant estab¬ 
lishing his legal right is entitled to from law-abiding citizens. 
A State might be provoked to resistance if it saw, as soon as 
it had passed a statute, the Federal government inviting the 
Supreme court to declare that statute invalid. But when the 
Federal authority stands silent, and a year after in an ordinary 
action between Smith and Jones the court decides in favour of 
Jones, who argued that the statute on which the plaintiff relied 
was invalid because it transgressed some provision of the Con¬ 
stitution, everybody feels that Jones was justified in so argu¬ 
ing, and that since judgment was given in his favour he must 
be allowed to retain the money which the court has found to 

1 Fletcher v. Peck, 6 Cranch, p. 87. 



chap, xxiii THE COURTS AND THE CONSTITUTION 259 


be his, and the statute which violated his private right must 
fall to the ground. 

This feature has particularly excited the admiration of 
Continental critics. To an Englishman it seems perfectly 
natural, because it is exactly in this way that much of English 
constitutional law has been built up. The English courts had 
indeed no rigid documentary constitution by which to test the 
ordinances or the executive acts of the Crown, and their deci¬ 
sions on constitutional points have often been pronounced in 
proceedings to which the Crown or its ministers were parties. 
But they have repeatedly established principles of the greatest 
moment by judgments delivered in cases where a private 
interest was involved, grounding themselves either on a statute 
which they interpreted or on some earlier decision. 1 Lord 
Mansfield’s famous declaration that slavery was legally impossi¬ 
ble in England was pronounced in such a private case. Stock- 
dale v. Hansard , in which the law regarding the publishing of 
debates in Parliament was settled, was an action by a private 
person against printers. The American method of settling 
constitutional questions, like all other legal questions, in actions 
between private parties, is therefore no new device, but a part 
of that priceless heritage of the English Common Law which 
the colonists carried with them across the sea, and which they 
have preserved and developed in a manner worthy of its own 
free spirit and lofty traditions. 

Those err who suppose that the functions above described as 
pertaining to the American courts are peculiar and essential 
to a Federal government. These functions are not peculiar to 
a federation, because the distinction of fundamental laws and 
inferior laws may exist equally well in a unified government, 
did exist in each of the thirteen colonies up till 1776, did exist 
in each of the thirteen States from 1776 till 1789, does exist 
in every one of the forty-eight States now. Nor are they 
essential, because a federation may well be imagined in which 
the central or national legislature should be theoretically sove¬ 
reign in the same sense and to the same full extent as is the 
British Parliament. 2 The component parts of any confederacy 


1 The independence of the English judges (since the Revolution) and of the 
American Federal judges has of course largely contributed to make them trusted, 
and to make them act worthily of the trust reposed in them. 

2 It would appear that in the Achaean League the Assembly (which voted by 



260 


THE NATIONAL GOVERNMENT 


PART I 


will no doubt be generally disposed to place their respective 
State rights under the protection of a compact unchangeable 
by the national legislature. But they need not do so, for they 
may rely on the command which as electors they have over that 
legislature, and may prefer the greater energy which a sovereign 
legislature promises to the greater security for State rights 
which a limited legislature implies. In the particular case of 
America it is abundantly clear that if there had been in 1787 
no States jealous of their powers, but an united nation creat¬ 
ing for itself an improved frame of government, the organs of 
that government would have been limited by a fundamental 
law just as they have in fact been, because the nation, distrust¬ 
ing the agents it was creating, was resolved to fetter them by 
reserving to itself the ultimate and over-riding sovereignty. 

The case of Switzerland shows that the American plan is not 
the only one possible to a federation. The Swiss Federal Court, 
while instituted in imitation of the American, is not the only 
authority competent to determine whether a Cantonal law is 
void because inconsistent with the Federal Constitution, for in 
some cases recourse must be had not to the Court but to the 
Federal Council, which is a sort of executive cabinet of the Con¬ 
federation. And the Federal Court must enforce every law 
passed by the Federal legislature, even if it appear to conflict 
with the Constitution. In other words, the Swiss Constitution 
has reserved some points of Cantonal law for an authority not 
judicial but political, and has made the Federal legislature the 
sole judge of its own powers, the authorized interpreter of the 
Constitution, and an interpreter not likely to proceed on purely 
legal grounds. 1 To an English or American lawyer the Swiss 
copy seems neither so consistent with sound theory nor so safe 
in practice as the American original. But the statesmen of 
Switzerland felt that a method fit for America might be ill- 
fitted for their own country, where the latitude given to the 

cities) was sovereign, and could by its vote vary the terms of the federal ar¬ 
rangements between the cities forming the federation ; although the scantiness 
of our data and what may be called the want of legal-mindedness among the 
Greeks make this and similar questions not easy of determination. 

1 See upon this fascinating subject, the provisions of the Swiss Federal Con¬ 
stitution of 1874, arts. 102, 110, and 114 ; also Dubs, Das oeffentliche Recht der 
Schweizerischen Eidgenossenschaft, and a valuable pamphlet by M. Ch. Sol- 
dan, entitled Du recours de Droit Public au Tribunal Federal; Bale, 1886. Dr. 
Dubs was himself the author of the plan whereby the Federal legislature is 
made the arbiter of its own constitutional powers. 



chap, xxin THE COURTS AND THE CONSTITUTION 261 


executive is greater; and the Swiss habit of constantly recur¬ 
ring to popular vote makes it less necessary to restrain the 
legislature by a permanently enacted instrument. The politi¬ 
cal traditions of the European continent differ widely from those 
of England and America ; and the Federal Judicature is not the 
only Anglo-American institution which might fail to thrive 
anywhere but in its native soil. 



CHAPTER XXIV 


THE WORKING OF THE COURTS 

Those readers who have followed thus far the account given 
of the Federal courts have probably asked themselves how 
judicial authorities can sustain the functions which America 
requires them to discharge. It is plain that judges, when 
sucked into the vortex of politics, must lose dignity, impar¬ 
tiality, and influence. But how can judges keep out of politics, 
when political issues raising party passions come before them ? 
Must not constitutional questions, questions as to the rights 
under the Constitution of the Federal government against the 
States, and of the branches of the Federal government against 
one another, frequently involve momentous political issues? 
In the troublous times during which the outlines of the English 
Constitution were settled, controversy often raged round the 
courts, because the decision of contested points lay in their 
hands. When Charles I. could not induce Parliament to admit 
the right of levying contributions which he claimed, and Par¬ 
liament relied on the power of the purse as its defence against 
Charles I., the question whether ship-money could lawfully be 
levied was vital to both parties, and the judges held the balance 
of power in their hands. At that moment the law could not 
be changed, because the Houses and the king stood opposed : 
hence everything turned on the interpretation of the existing 
law. In America the Constitution is at all times very hard to 
change : much more then must political issues turn on its 
interpretation. And if this be so, must not the interpreting 
court be led to assume a control over the executive and legis¬ 
lative branches of the government, since it has the power of 
declaring their acts illegal ? 

There is ground for these criticisms. The evil they point to 
has occurred and may recur. But it occurs very rarely, and 
may be averted by the same prudence which the courts have 
hitherto generally shown. The causes which have enabled the 

262 


CHAP. XXIY THE WORKING OF THE COURTS 


263 


Federal courts to avoid it, and to maintain their dignity and 
influence almost unshaken, are the following : — 

I. The Supreme court — I speak of the Supreme court 
because its conduct has governed that of inferior Federal courts 
— has always declared that it is not concerned with purely 
political questions. Whenever it finds any discretion given to the 
President, any executive duty imposed on him, it considers the 
manner in which he exercises his discretion and discharges the 
duty to be beyond its province. Whenever the Constitution 
has conferred upon Congress a power of legislating, the court 
declines to inquire whether the use of the power was in the case of 
a particular statute passed by Congress either necessary or desir¬ 
able, or whether it was exerted in a prudent manner, for it holds 
all such matters to be within the exclusive province of Congress. 

“In measures exclusively of a political, legislative, or executive char¬ 
acter, it is plain that as the supreme authority as to these questions 
belongs to the legislative and executive departments, they cannot be re¬ 
examined elsewhere. Thus Congress, having the power to declare war, 
to levy taxes, to appropriate money, to regulate intercourse and com¬ 
merce with foreign nations, their mode of executing these powers can 
never become the subject of re-examination in any other tribunal. So 
the power to make treaties being confided to the President and Senate, 
when a treaty is properly ratified, it becomes the law of the land, and no 
other tribunal can gainsay its stipulations. Yet cases may readily be 
imagined in which a tax may be laid, or a treaty made upon motives and 
grounds wholly beside the intention of the Constitution. The remedy, 
however, in such cases is solely by an appeal to the people at the elec¬ 
tions, or by the salutary power of amendment provided by the Constitu¬ 
tion itself.” 1 

Adherence to this principle has enabled the court to avoid an 
immixture in political strife which must have destroyed its 
credit, has deterred it from entering the political arena, where 
it would have been weak, and enabled it to act without fear in 
the sphere of pure law, where it is strong. Occasionally, how¬ 
ever, as I shall explain presently, the court has come into col¬ 
lision with the executive. Occasionally it has been required 
to give decisions which have worked with tremendous force on 
politics. The most famous of these was the Dred Scott case, 2 

1 Story, Commentaries on the Constitution, § 374. 

2 Scott v. Sandjord, 19 How. 393. There is an immense literature about 
this case, the legal points involved in which are too numerous and technical to 
be here stated. It is noticeable that the sting of the decision lay rather in the 
obiter dicta than in the determination of the main question involved. 



264 


THE NATIONAL GOVERNMENT 


PART r 


in which the Supreme court, on an action by a negro for assault 
and battery against the person claiming to be his master, de¬ 
clared that a slave taken temporarily to a free State and to a 
Territory in which Congress had forbidden slavery, and after¬ 
wards returning into a slave State and resuming residence there, 
was not a citizen capable of suing in the Federal courts if by the 
law of the slave State he was still a slave. This was the point 
which actually called for decision; but the majority of the 
court, for there was a dissentient minority, went further, and 
delivered a variety of dicta on various other points touching 
the legal status of negroes and the constitutional view of slavery. 
This judgment, since the language used in it seemed to cut off 
the hope of a settlement by the authority of Congress of the 
then (1857) pending disputes over slavery and its extension, did 
much to precipitate the Civil War. 

Some questions, and among them many which involve political 
issues, can never come before the Federal courts, because they 
are not such as are raisable in an action between parties. Of 
those which might be raised, some never happen to arise, while 
others do not present themselves in an action till some time 
after the statute has been passed or act done on which the 
court is called to pronounce. By that time it may happen 
that the warmth of feeling which expressed itself during debate 
in Congress or in the country has passed away, while the judg¬ 
ment of the nation at large has been practically pronounced 
upon the issue. 

II. Looking upon itself as a pure organ of the law, com¬ 
missioned to do justice between man and man, but to do nothing 
more, the Supreme court has steadily refused to decide abstract 
questions, or to give opinions in advance by way of advice to 
the executive. When, in 1793, President Washington requested 
its opinion on the construction of the treaty of 1778 with France, 
the judges declined to comply. 

This restriction of the court’s duty to the determination of 
concrete cases arising in suits has excited so much admiration 
from Tocqueville and other writers, that the corresponding 
disadvantages must be stated. They are these : — 

To settle at once and for ever a disputed point of constitu¬ 
tional law would often be a gain both to private citizens and 
to the organs of the government. Under the present system 
there is no certainty when, if ever, such a point will be settled. 



chap, xxiv THE WORKING OF THE COURTS 


265 


Nobody may care to incur the trouble and expense of taking 
it before the court. A suit which raises it may be compro¬ 
mised or dropped. 

When such a question, after perhaps the lapse of years, 
comes before the Supreme court and is determined, the deter¬ 
mination may be different from what the legal profession has 
expected, may alter that which has been believed to be the 
law, may shake ♦ or overthrow private interests based upon 
views now declared to be erroneous. 1 These are, no doubt, 
drawbacks incident to every system in which the decisions of 
courts play a great part. There are many points in the law 
of England which are uncertain even now, because they have 
never come before a court of high authority, or, having been 
decided in different ways by co-ordinate courts, have not been 
carried to the final court of appeal. But in England the in¬ 
convenience, should it be great, can be removed by Act of Par¬ 
liament ; and it can hardly be so great as it may be in America, 
where, since the doubtful point may be the true construction 
of the fundamental law of the Union, the President and Con¬ 
gress may be left in uncertainty as to how they shall shape 
their course. With the best wish in the world to act con¬ 
formably to the Constitution, these authorities have no means 
of ascertaining before they act what, in the view of its author¬ 
ized interpreters, the true meaning of the Constitution is. 
Moved by this consideration, seven States of the Union have 
by their Constitutions empowered the governor or legis¬ 
lature to require the written opinions of the judges of the 
highest State court on points submitted to them. 2 But the 
President of the United States can only consult his attorney- 

1 The Dred Scott decision in 1857 declared the Missouri compromise, carried 
out by Act of Congress in 1820, to have been beyond the powers of Congress, 
which, to be sure, had virtually repealed it in the year 1854 by the Kansas- 
Nebraska legislation. Decisions have been given on the fourteenth and fif¬ 
teenth amendments upsetting or qualifying congressional legislation passed 
years before. 

2 See Chapter XXXVII. post. There exists a similar provision in the statute 
of 1875, creating the Supreme Court of Canada, and the Government of Ireland 
Bill, introduced into the House of Commons in 1886, but defeated there, con¬ 
tained (§ 25) a provision enabling the Lord-Lieutenant of Ireland or a Secre¬ 
tary of State to refer a question for opinion to the judicial committee of the 
Privy Council. In the Home Rule Bill of 1893 this provision reappeared in 
the modified form of a power to obtain, in urgent cases, the opinion of the 
Judicial Committee on the constitutionality of an Act passed by the Irish 
legislature. 



266 


THE NATIONAL GOVERNMENT 


PART I 


general, 1 and the Houses of Congress have no legal adviser, 
though to be sure they are apt to receive a profusion of advice 
from their own legal members. 2 

III. Other causes which have sustained the authority of 
tho court by saving it from immersion in the turbid pool of 
politics, are the strength of professional feeling among American 
lawyers, the relation of the bench to the bar, the power of the 
legal profession in the country. The keen interest which the 
profession takes in the law secures a large number of acute and 
competent critics of the interpretation put upon the law by the 
judges. Such men form a tribunal to whose opinion the judges 
are sensitive, and all the more sensitive because the judges, like 
those of England, but unlike those of continental Europe, have 
been themselves practising counsel. The better lawyers of the 
United States do not sink their professional sentiment and opinion 
in their party sympathies. They know good law even when 
it goes against themselves, and privately condemn as bad law 
a decision none the less because it benefits their party or their 
client. The Federal judge who has recently quitted the ranks 
of the bar remains in sympathy with it, respects its views, 
desires its approbation. Both his inbred professional habits, 
and his respect for those traditions which the bar prizes, restrain 
him from prostituting his office to party objects. Though 
he has usually been a politician, and owes his promotion to his 
party, his political trappings drop off him when he mounts the 
Supreme bench. He has now nothing to fear from party dis¬ 
pleasure, because he is irremovable (except by impeachment), 
nothing to hope from party favour, because he is at the top of the 
tree and can climb no higher. Virtue has all the external con¬ 
ditions in her favour. It is true that virtue is compatible with 
a certain bias of the mind, and compatible also with the desire 
to extend the power and jurisdiction of the court. But even 
allowing that this motive does occasionally sway the judicial 
mind, the circumstances which surround the action of a tribunal 
debarred from initiative, capable of dealing only with concrete 
cases that come before it at irregular intervals, unable to ap- 

1 The President sometimes, for the benefit of the public, publishes the writ¬ 
ten opinion of the attorney-general on an important and doubtful point; but 
such an opinion has authority only as a direction to the executive officials, 
giving them guidance in the discharge of their duties. 

2 Each House has a Judiciary Committee which sometimes reports on the 
constitutional aspect of a bill. 



chap, xxiv THE WORKING OF THE COURTS 


267 


propriate any of the sweets of power other than power itself, 
make a course of systematic usurpation more difficult and less 
seductive than it would be to a legislative assembly or an execu¬ 
tive council. As the respect of the bench for the bar tends to 
keep the judges in the straight path, so the respect and regard 
of the bar for the bench, a regard grounded on the sense of pro¬ 
fessional brotherhood; ensure the moral influence of the court in 
the country. The bar has usually been very powerful in America, 
not only as being the only class of educated men who are at 
once men of affairs and skilled speakers, but also because there 
has been no nobility or territorial aristocracy to over-shadow 
it. 1 Politics have been largely in its hands, and must remain 
so as long as political questions continue to be involved with 
the interpretation of constitutions. For the first sixty or seventy 
years of the Republic the leading statesmen were lawyers, 
and the lawyers as a whole moulded and led the public opinion 
of the country. Now to the better class of American lawyers 
law was a sacred science, and the highest court which dispensed 
it a sort of Mecca, towards which the faces of the faithful turned. 
Hence every constitutional case before the Supreme court was 
closely watched, the reasonings of the court studied, and its 
decisions appreciated as law apart from their bearing on political 
doctrines. I have heard elderly men describe the interest with 
which, in their youth, a famous advocate who had gone to 
Washington to argue a case before the Supreme court was 
welcomed by the bar of his own city on his return, how the rising 
men crowded round him to hear what he had to tell of the combat 
in that arena where the best intellects of the nation strove, 
how the respect which he never failed to express for the ability 
and impartiality of the court communicated itself to them, how 
admiration bred acquiescence, and the whole profession accepted 
expositions of the law unexpected by many, perhaps unwelcome 
to most. When it was felt that the judges had honestly sought 
to expound the Constitution, and when the cogency of their 
reasonings was admitted, resentment, if any there had been, 
passed away, and the support which the bar gave to the court 
ensured the obedience of the people. 

That this factor in the maintenance of judicial influence 
proved so potent was largely due to the personal eminence of 

1 See Chapter CIV. post. Professional interest, stronger in the last genera¬ 
tion than it is now, would seem to be still declining. 



268 


THE NATIONAL GOVERNMENT 


PART I 


the judges. One must not call that a result of fortune which 
was the result of the wisdom of successive Presidents in choos¬ 
ing capable men to sit on the supreme Federal bench. Yet one 
man was so singularly fitted for the office of chief justice, and 
rendered such incomparable services in it, that the Americans 
have been wont to regard him as a special gift of favouring 
Providence. This was John Marshall, who presided over the 
Supreme court from 1801 till his death in 1835 at the age of 
eighty, and whose fame overtops that of all other American 
judges more than Papinian overtops the jurists of Rome or 
Lord Mansfield the jurists of England. No other man did half 
so much either to develop the Constitution by expounding it, 
or to secure for the judiciary its rightful place in the govern¬ 
ment as the living voice of the Constitution. No one vindicated 
more strenuously the duty of the court to establish the author¬ 
ity of the fundamental law of the land, no one abstained more 
scrupulously from trespassing on the field of executive admin¬ 
istration or political controversy. The admiration and respect 
which he and his colleagues won for the court remain its bul¬ 
wark : the traditions which were formed under him and them 
have continued in general to guide the action and elevate the 
sentiments of their successors. 

Nevertheless, the court has not always had smooth seas to 
navigate. It has more than once been shaken by blasts of 
unpopularity. It has not infrequently found itself in conflict 
with other authorities. 

The first attacks arose out of its decision that it had juris¬ 
diction to entertain suits by private persons against a State. 1 
This point was set at rest by the eleventh amendment; but the 
States then first learnt to fear the Supreme court as an antag¬ 
onist. In 1801, in an application requiring the secretary of 
state to deliver a commission, it declared itself to have the 
power to compel an executive officer to fulfil a ministerial duty 
affecting the rights of individuals. 2 President Jefferson pro¬ 
tested angrily against this claim, but it has been repeatedly re¬ 
asserted, and is now undoubted law. It was in this same case 

1 Chisholm v. Georgia, see above, p. 235. 

2 Marbury v. Madison, 1 Cranch, 137. In this case the court refused to issue 
the mandamus asked for, but upon the ground that the statute of Congress 
giving to the Supreme court original jurisdiction to issue a mandamus was 
inconsistent with the Constitution. See also Kendal v. United States, 12 Peters, 
616; United States v. Schurz, 102 U. S. 378. 



chap, xxiv THE WORKING OF THE COURTS 


269 


that the court first explicitly asserted its duty to treat as 
invalid an Act of Congress inconsistent with the Consti¬ 
tution. In 1805 its independence was threatened by the 
impeachment of Justice Chase, the aim of the Republican 
(Democratic) party then dominant in Congress being to set a 
precedent for ejecting, by means of impeachment, judges (and 
especially Chief-Justice Marshall), whose attitude on constitu¬ 
tional questions they condemned. The acquittal of Chase dis¬ 
pelled this danger : nor could John Randolph, who then led the 
House, secure the acceptance of an amendment to the Constitu¬ 
tion which he thereupon proposed for enabling the President to 
remove Federal judges on an address of both Houses of Congress. 
In 1806 the court for the first time pronounced a State statute 
void; in 1816 and 1821 it rendered decisions establishing its 
authority as a supreme court of appeal from State courts on 
“federal questions,” and unfolding the full meaning of the 
doctrine that the Constitution and Acts of Congress duly made 
in pursuance of the Constitution are the fundamental and 
supreme law of the land. This was a doctrine which had not 
been adequately apprehended even by lawyers, and its devel¬ 
opment, legitimate as we now deem it, roused opposition. The 
ultra-Democrats, who came into power under President Jackson 
in 1829, were specially hostile to a construction of the Con¬ 
stitution which seemed to trench upon State rights, 1 and when 
in 1832 the Supreme court ordered the State of Georgia to release 
persons imprisoned under a Georgian statute which the court 
declared to be invalid, 2 Jackson, whose duty it was to enforce 
the decision by the executive arm, remarked, “John Marshall 
has pronounced his judgment: let him enforce it if he can.” 
The successful resistance of Georgia in the Cherokee dispute 3 


1 Martin Van Buren (President 1837—41) expressed the feelings of the bulk 

of his party when he complained bitterly of the encroachments of the Supreme 
court, and declared that it would never have been created had the people fore¬ 
seen the powers it would acquire. . 

2 This was only one act in the long struggle of the Cherokee Indians against 
the oppressive conduct of Georgia — conduct which the court emphatically 
condemned, though it proved powerless to help the unhappy Cherokees. 

3 The matter did not come to an absolute conflict, because before the time 
arrived for the court to direct the United States marshal of the district of Georgia 
to summon the posse comitatus and the President to render assistance in i era - 
ing the prisoners, the prisoners submitted to the State authorities, and were 
thereupon released. They probably believed that the imperious Jackson wou 
persist in his hostility to the Supreme court-. No succeeding President Has 
ever ventured to talk of defying the Court. 



270 


THE NATIONAL GOVERNMENT 


PART I 


gave a temporary, though only a temporary, blow to the 
authority of the court, and marked the beginning of a new 
period in its history, during which, in the hands of judges 
mostly appointed by the Democratic party, it made no further 
advance in power. 

In 1857 the Dred Scott judgment, pronounced by a majority 
of the judges, excited the strongest outbreak of displeasure yet 
witnessed. The Republican party, then rising into strength, 
denounced this decision in the resolutions of the convention 
which nominated Abraham Lincoln in 1860, and its doctrine 
as to citizenship was expressly negatived in the fourteenth 
constitutional amendment adopted after the War of Secession. 

It was feared that the political leanings of the judges who 
formed the court at the outbreak of the war would induce them 
to throw legal difficulties in the prosecution of the measures 
needed for re-establishing the authority of the Union. These 
fears proved ungrounded, although some contests arose as to 
the right of officers in the Federal army to disregard writs of 
habeas corpus issued by the court. 1 In 1868, having then be¬ 
come Republican in its sympathies by the appointment of new 
members as the older judges disappeared, it tended to sustain 
the congressional plan of reconstruction which President John¬ 
son desired to defeat, and in subsequent cases it has given effect 
to most, though not to all, of the statutes passed by Congress 
under the three amendments which abolished slavery and 
secured the rights of the negroes. In 1866 it refused to enter¬ 
tain proceedings instituted for the purpose of forbidding the 
President to execute the Reconstruction Acts. 

Two of its later acts are thought by some to have affected 
public confidence. One of these was the reversal, first in 1871, 
and again, upon broader but not inconsistent grounds, in 1884, 
of the decision, given in 1870, which declared invalid the Act 
of Congress making government paper a legal tender for debts. 
The original decision of 1870 was rendered by a majority of five 
to three. The court was afterwards changed by the creation 
of an additional judgeship, 2 and by the appointment of a new 
member to fill a vacancy which occurred after the settlement, 
though before the delivery, of the first decision. Then the 
question was brought up again in a new case between different 

1 See Ex parte Milligan , 4 Wall. 129. 

2 Appointed, however, under an Act passed in April, 1869. 



chap, xxiv THE WORKING OF THE COURTS 


271 


parties, and decided in the opposite sense ( i.e . in favour of 
the power of Congress to pass legal tender Acts) by a majority 
of five to four. Finally, in 1884, another suit having brought 
up a point practically the same, though under a later statute 
passed by Congress, the court determined with only one dis¬ 
sentient voice that the power existed. 1 This last decision excited 
some criticism, especially among the more conservative lawyers, 
because it seemed to remove restrictions hitherto supposed to 
exist on the authority of Congress, recognizing the right to 
establish a forced paper currency as an attribute of the sover¬ 
eignty of the national government. But be the decision right 
or wrong, the reversal by the highest court in the land of its own 
previous decision may have tended to unsettle men’s reliance 
on the stability of the law; while the manner of the earlier 
reversal, following as it did on the appointment of two new 
justices, known to be in favour of the view which the majority 
of the court had just disapproved, though apparently not ap¬ 
pointed for that reason, disclosed a weak point in the consti¬ 
tution of the tribunal which may some day prove fatal to its 
usefulness. 

The other misfortune was the interposition of the court in 
the presidential electoral count dispute of 1877. 2 The five 
justices of the Supreme court who were included in the elec¬ 
toral commission then appointed voted on party lines no less 
steadily than did the senators and representatives who sat on 
it. A function scarcely judicial, and certainly not contem¬ 
plated by the Constitution, was then for the first time thrown 
upon the judiciary, and in discharging it the judiciary acted 
exactly like non-judicial persons. 

Notwithstanding this occurrence, which after all was quite 
exceptional, the credit and dignity of the Supreme court stand 
very high. No one of its members has ever been suspected of 
corruption, and comparatively few have allowed their political 
sympathies to disturb their official judgment. Though for 
many years before 1909 every President had appointed only men 
of his own party, and frequently leading politicians of his own 

1 The earlier decision in favour of the power deduced it from war powers, 
the later from the general sovereignty of the national government. See Hep¬ 
burn v. Griswold , 8 Wall. 603 ; Legal Tender Cases, 12 Wall. 457; Juilliard v. 
Greenman, 110 U. S. 421. 

2 See above, Chapter V. 



272 


THE NATIONAL GOVERNMENT 


PART I 


party, 1 each new-made judge left partisanship behind him, 
while no doubt usually retaining that bias or tendency of his 
mind which party training produces. When a large majority 
of the judges belong to one party, the other party regret the 
fact, and welcome the prospect of putting in some of their own 
men as vacancies occur; yet the desire for an equal represen¬ 
tation of both parties is based, not on a fear that suitors will 
suffer from the influence of party spirit, but on the feeling 
that when any new constitutional question arises it is right 
that the tendencies which have characterized the view of the 
Constitution taken by the Democrats on the one hand and 
the Republicans on the y>ther, should each be duly repre¬ 
sented. 

Apart from these constitutional questions, the value of the 
Federal courts to the country at large has been inestimable. 
They have done much to meet the evils which an elective and 
ill-paid State judiciary inflicts on most of the newer and a few 
even of the older States. The Federal Circuit and District 
judges, small as are their salaries, are in most States individu¬ 
ally superior men to the State judges, because the greater 
security of tenure induces abler men to accept the post. They 
exercise a wider power of charging the jury than most States 
allow to their judges. Being irremovable, they feel themselves 
independent of parties and of politicians, whom the elected State 
judge, holding for a limited term, may be tempted to conciliate 
with a view to re-election. Plaintiffs, therefore, when they have 
a choice of suing in a State court or a Federal court, frequently 
prefer the latter; and the litigant who belongs to a foreign 
country, or to a different State from that in which his opponent 
resides, may think his prospects of an unbiassed decision better 
before it than before a State tribunal. Nor is it without inter¬ 
est to add that criminal justice is more strictly administered in 
the Federal courts. 

Federal judgeships of the second and third rank (Circuit 
and District) have been hitherto given to the members of the 
President’s party, and by an equally well-established usage, to 

1 President Taft (1909-13) appointed several persons to be judges who did 
not belong to his own party, the other party having at the time very few repre¬ 
sentatives on the Supreme Bench. Non-political appointments are occasionally 
made in the several States by the governors, or even (as in the case of Chief- 
Justice Redfield of Vermont) by the legislature. 



CHAP. XXIY THE WORKING OF THE COURTS 


273 


persons resident in the State or States where the circuit or 
district court is held. In 1891, however, a Republican Presi¬ 
dent appointed two Democrats to be judges of the new circuit 
court of appeals, and placed several Democrats on the (tem¬ 
porary) Private Land Claims court. Cases of corruption are 
practically unknown, and partisanship, or subservience to power¬ 
ful local interests, though sometimes charged, is infrequent. 
The chief defects have been the inadequacy of the salaries, and 
the insufficiency of the staff in populous commercial States to 
grapple with the vast and increasing business which flows in 
upon them. So too, in the Supreme court, arrears have so accu¬ 
mulated that it is sometimes three years or more from the 
time when a cause is entered till the day when it comes on for 
hearing. Some have proposed to meet this evil by limiting the 
right of appeal to cases involving a considerable sum of money; 
others would divide the Supreme court into two divisional 
courts for the hearing of ordinary suits, reserving for the full 
court points affecting the construction of the Constitution. 

One question remains to be put and answered. 

The Supreme court is the living voice of the Constitution 1 
— that is, of the will of the people expressed in the funda¬ 
mental law they have enacted. It is, therefore, as some one 
has said, the conscience of the people, who have resolved to 
restrain themselves from hasty or unjust action by placing 
their representatives under the restriction of a permanent 
law. It is the guarantee of the minority, who, when threat¬ 
ened by the impatient vehemence of a majority, can appeal to 
this permanent law, finding the interpreter and enforcer thereof 
in a court set high above the assaults of faction. 

To discharge these momentous functions, the court must be 
stable even as the Constitution is stable. Its spirit and tone 
must be that of the people at their best moments. It must 
resist transitory impulses, and resist them the more firmly the 
more vehement they are. Entrenched behind impregnable 
ramparts, it must be able to defy at once the open attacks of 
the other departments of the government, and the more dan¬ 
gerous, because impalpable, seductions of popular sentiment. 

1 The Romans called their chief judicial officer the praetor, “the living voice 
of the civil law’’ ; but as this “civil law” consisted largely of custom, he natu¬ 
rally enjoyed a wider discretion in moulding and expanding as well as in expound¬ 
ing the law than do the American judges, who have a formally enacted consti¬ 
tution to guide and restrain them. 

T 



274 


THE NATIONAL GOVERNMENT 


PART I 


Does it possess, has it displayed, this strength and stability ? 

It has not always followed its own former decisions. This 
is natural in a court whose errors cannot be cured by the in¬ 
tervention of the legislature. The English final Court of 
Appeal always follows its previous decisions, though high 
authorities have declared that cases may be imagined in which 
it would refuse to do so. And that court (the House of Lords) 
can afford so to adhere, because, when an old decision begins 
to be condemned, Parliament can forthwith alter the law. 
But as nothing less than a constitutional amendment can 
alter the law contained in the Federal Constitution, the Su¬ 
preme court must choose between the evil of unsettling the 
law by reversing, and the evil of perpetuating bad law by fol¬ 
lowing, a former decision. It may reasonably, in extreme 
cases, deem the latter evil the greater. 

The Supreme court feels the touch of public opinion. Opin¬ 
ion is stronger in America than anywhere else in the world, and 
judges are only men. To yield a little may be prudent, for the 
tree that cannot bend to the blast may be broken. There is, 
moreover, this ground at least for presuming public opinion to 
be right, that through it the progressive judgment of the world 
is expressed. Of course, whenever the law is clear, because the 
words of the Constitution are plain or the cases interpreting 
them decisive on the point raised, the court must look solely to 
those words and cases, and cannot permit any other considera¬ 
tion to affect its mind. But when the terms of the Constitution 
admit of more than one construction, and when previous deci¬ 
sions have left the true construction so far open that the point 
in question may be deemed new, is a court to be blamed if it 
prefers the construction which the bulk of the people deem 
suited to the needs of the time? A court is sometimes so 
swayed consciously, more often unconsciously, because the per¬ 
vasive sympathy of numbers is irresistible even by elderly law¬ 
yers. A remarkable example is furnished by the decisions (in 
1876) of the Supreme court in the so-called Granger cases, suits 
involving the power of a State to subject railways and other 
corporations or persons exercising what are called “public 
trades” to restrictive legislation without making pecuniary com¬ 
pensation. 1 These decisions evidently represent a different 

1 See Munn v. Illinois, and the following cases in 94 U. S. Rep. 193 (with 
which compare C. M. & St. P. R. R. Co. v. Minn., 134 U. S. 418; and Bvdd v. 



chap, xxiv THE WORKING OF THE COURTS 


275 


view of the sacredness of private rights and of the powers of a 
legislature from that entertained by Chief-Justice Marshall and 
his contemporaries. They reveal that current of opinion which 
now runs strongly in America against what are called monopo¬ 
lies and the powers of incorporated companies. 

The Supreme court has changed its colour, i.e. its temper and 
tendencies, from time to time, according to the political procliv¬ 
ities of the men who composed it. It changes very slowly, 
because the vacancies in a small body happen rarely, and its com¬ 
position therefore often represents the predominance of a past 
and not of the presently ruling party. From 1789 down till the 
death of Chief-Justice Marshall in 1835 its tendency was to the 
extension of the powers of the Federal government, and there¬ 
with of its own jurisdiction, because the ruling spirits in it 
were men who belonged to the old Federalist party, though that 
party fell in 1800, and disappeared in 1814. From 1835 till 
the War of Secession its sympathies were with the doctrines of 
the Democratic party. Without actually abandoning the posi¬ 
tions of the previous period, the court, during these years when 
Chief-Justice Taney presided over it, leant against any further 
extension of Federal power or of its own jurisdiction. During 
and after the war, when the ascendency of the Republican party 
had begun to change the composition of the court, a third pe¬ 
riod opened. Centralizing ideas were again powerful: the vast 
war powers asserted by Congress were in most instances sup¬ 
ported by judicial decision, the rights of States while main¬ 
tained (as in the Granger cases) as against private persons or 
bodies, were for a time regarded with less favour whenever they 
seemed to conflict with those of the Federal government. In 
none of these three periods can the judges be charged with any 
prostitution of their functions to party purposes. Their action 
flowed naturally from the habits of thought they had formed 
before their accession to the bench, and from the sympathy they 
could not but feel with the doctrines on whose behalf they had 
contended. Even on the proverbially upright and impartial 

N. Y., 12 S. C. Reporter, 648). This was one of those cases in which the 
court felt bound to regard not only the view which it took itself of the meaning 
of the Constitution but that which a legislature might reasonably take. See 
Chapter XXXIV. post. As to the non-liability to make compensation where 
licenses for the sale of intoxicants are forbidden, see Mugler v. Kansas, 123 U. S. 

Rep. 623. , ,, , 

I abstain from referring to more recent cases lest I should seem to be ap¬ 
proaching a field at present highly controversial. 



276 


THE NATIONAL GOVERNMENT 


PART I 


bench of England the same tendencies may be discerned. There 
are constitutional questions, and questions touching what may 
be called the policy of the law, which would be decided differ¬ 
ently by one English judge or by another, not from any con¬ 
scious wish to favour a party or a class, but because the views 
which a man holds as a citizen cannot fail to colour his judg¬ 
ment even on legal points. 

The Fathers of the Constitution studied nothing more than to 
secure the complete independence of the judiciary. The Presi¬ 
dent was not permitted to remove the judges, nor Congress to 
diminish their salaries. One thing only was either forgotten 
or deemed undesirable, because highly inconvenient, to deter¬ 
mine,— the number of judges in the Supreme court. Here 
was a weak point, a joint in the court’s armour through which 
a weapon might some day penetrate. Congress having in 1801, 
pursuant to a power contained in the Constitution, established 
sixteen Circuit courts, President Adams, immediately before he 
quitted office, appointed members of his own party to the jus¬ 
ticeships thus created. When President Jefferson came in, he 
refused to admit the validity of the appointments; and the 
newly elected Congress, which was in sympathy with him, abol¬ 
ished the Circuit courts themselves, since it could find no other 
means of ousting the new justices. This method of attack, 
whose constitutionality has been much doubted, cannot be used 
against the Supreme court, because that tribunal is directly cre¬ 
ated by the Constitution. But as the Constitution does not pre¬ 
scribe the number of justices, a statute may increase or dimin¬ 
ish the number as Congress thinks fit. In 1866, when Congress 
was in fierce antagonism to President Johnson, and desired to 
prevent him from appointing any judges, it reduced the num¬ 
ber, which was then ten, by a statute providing that no vacancy 
should be filled up till the number was reduced to seven. In 
1869, when Johnson had been succeeded by Grant, the number 
was raised to nine, and presently the altered court allowed the 
question of the validity of the Legal Tender Act, just before 
determined, to be reopened. This method is plainly susceptible 
of further and possibly dangerous application. Suppose a Con¬ 
gress and President bent on doing something which the Supreme 
court deems contrary to the Constitution. They pass a statute. 
A case arises under it. The court on the hearing of the case 
unanimously declares the statute to be null, as being beyond 



chap, xxiv THE WORKING OF THE COURTS 


277 


the powers of Congress. Congress forthwith passes and the 
President signs another statute more than doubling the num¬ 
ber of justices. The President appoints to the new jus¬ 
ticeships men who are pledged to hold the former statute con¬ 
stitutional. The Senate confirms his appointments. Another 
case raising the validity of the disputed statute is brought up 
to the court. The new justices outvote the old ones : the stat¬ 
ute is held valid : the security provided for the protection of 
the Constitution is gone like a morning mist. 

What prevents such assaults on the fundamental law — 
assaults which, however immoral in substance, would be per¬ 
fectly legal in form? Not the mechanism of government, for 
all its checks have been evaded. Not the conscience of the 
legislature and the President, for heated combatants seldom 
shrink from justifying the means by the end. Nothing but 
the fear of the people, whose broad good sense and attachment 
to the great principles of the Constitution may generally be 
relied on to condemn such a perversion of its forms. Yet if 
excitement has risen high over the country, a majority of the 
people may acquiesce ; and then it matters little whether what 
is really a revolution be accomplished by openly violating or 
by merely distorting the forms of law. To the people we 
come sooner or later : it is upon their wisdom and self-restraint 
that the stability of the most cunningly devised scheme of 
government will in the last resort depend. 



CHAPTER XXV 


COMPARISON OF THE AMERICAN AND EUROPEAN SYSTEMS 

The relations to one another of the different branches of the 
government in the United States are so remarkable and so full 
of instruction for other countries, that it seems desirable, even 
at the risk of a little repetition, to show by a comparison with 
the Cabinet or parliamentary system of European countries 
how this complex American machinery actually works. 

The English system on which have been modelled, of course 
with many variations, the systems of France, Belgium, Hol¬ 
land, Italy, Germany, Hungary (where, however, the English 
scheme has been compounded with an ancient and very inter¬ 
esting native-born constitution), Sweden, Norway, Denmark, 
Spain, and Portugal, as well as the constitutions of the great 
self-governing English colonies in North America, the Cape, 
and Australasia — this English system places at the head of 
the state a person in whose name all executive acts are done, 
and who is (except in France) irresponsible and irremovable. 1 
His acts are done by the advice and on the responsibility of 
ministers chosen nominally by him, but really by the repre¬ 
sentatives of the people — usually, but not necessarily, from 
among the members of the legislature. The representatives 
are, therefore, through the agents whom they select, the true 
government of the country. When the representative assembly 
ceases to trust these agents, the latter (unless they dissolve 
the legislature) resign, and a new set are appointed. Thus the 
executive as well as the legislative power really belongs to the 
majority of the representative chamber, though in appointing 
agents, an expedient which its size makes needful, it is forced 
to leave in the hands of these agents a measure of discretion 

1 In the German Empire the Ministers are comparatively independent of 
the Reichstag, i.e. it cannot displace them by a hostile vote as the British House 
of Commons practically can. In the British colonies the governor is irremov¬ 
able by the colony, and irresponsible to its legislature, though responsible to 
and removable by the home government. 

278 


chap, xxv AMERICAN AND EUROPEAN SYSTEMS 279 


sufficient to make them appear distinct from it, and sometimes 
to tempt them to acts which their masters disapprove. As the 
legislature is thus in a sense executive, so the executive gov¬ 
ernment, the council of ministers or cabinet, is in so far legis¬ 
lative that the initiation of measures rests very largely with 
them, and the carrying of measures through the Chamber de¬ 
mands their advocacy and counter pressure upon the majority 
of the representatives. They are not merely executive agents 
but also legislative leaders. One may. say, indeed, that the 
legislative and executive functions are interwoven as closely 
under this system as under absolute monarchies, such as Impe¬ 
rial Rome or modern Russia; and the fact that taxation, while 
effected by means of legislation, is the indispensable engine of 
administration, shows how inseparable are these two appar¬ 
ently distinct powers. 

Under this system the sovereignty of the legislature may be 
more or less complete. It is most complete in France; least 
complete in Germany and Prussia, where the power of the 
Emperor and King has remained great. But in all these 
countries not only are the legislature and executive in close 
touch with one another, but they settle their disputes without 
reference to the judiciary. The courts of law cannot be invoked 
by the executive against the legislature, because questions 
involving the validity of a legislative act do not come before 
it, since the legislature is either completely sovereign, as in 
England, or the judge of its own competence, as in Belgium. 
The judiciary, in other words, does not enter into the considera¬ 
tion of the political part of the machinery of government. 

This system of so-called cabinet government seems to Euro¬ 
peans now, who observe it at work over a large part of the 
world, an obvious and simple system. We are apt to forget 
that it was never seen anywhere till the English developed it 
by slow degrees, and that it is a very delicate system, depend¬ 
ing on habits, traditions, and understandings which are not 
easily set forth in words, much less transplanted to a new soil. 

We are also prone to forget how very recent it is. People 
commonly date it from the reign of King William the Third; 
but it worked very irregularly till the Hanoverian kings came 
to the throne, and even then it at first worked by means of a 
monstrous system of bribery and place-mongering. In the days 
of George the Third the personal power of the Crown for a 



280 


THE NATIONAL GOVERNMENT 


PART I 


while revived and corruption declined. 1 The executive head 
of the state was, during the later decades of the century, a 
factor apart from his ministers. They were not then, as now, 
a mere committee of Parliament dependent upon Parliament, 
but rather a compromise between the king’s will and the will 
of the parliamentary majority. They deemed and declared 
themselves to owe a duty to the king conflicting with, some¬ 
times overriding, their duty to Parliament. Those phrases of 
abasement before the Crown which when now employed by 
prime ministers amuse us by their remoteness from the reali¬ 
ties of the case, then expressed realities. In 1787, when the 
Constitutional Convention met at Philadelphia, the Cabinet 
system of government was in England still immature. It was 
so immature that its true nature had not been perceived. 2 And 
although we now can see that the tendency was really towards 
the depression of the Crown and the exaltation of Parliament, 
men might well, when they compared the influence of George 
III. with that exercised by George I., 3 argue in the terms of 


1 Corruption was possible, because the House of Commons did not look for 
support to the nation, its debates were scantily reported, it had little sense of 
responsibility. An active king was therefore able to assert himself against it, 
and to form a party in it, as well as outside of it, which regarded him as its 
head. This forced the Whigs to throw themselves upon the nation at large ; 
the Tories did the same ; corruption withered away ; and as Parliament came 
more and more under the watchful eye of the people, and responsible to it, the 
influence of the king declined and vanished. 

2 Gouverneur Morris, however, one of the acutest minds in the Convention 
of 1787, remarked there, “Our President will be the British (Pr im p) Minister. 
If Mr. Fox had carried his India Bill, he would have made the Minister the 
King in form almost as well as in substance.” — Elliot’s Debates, i. 361. Roger 
Sherman, though he saw the importance of the Cabinet, looked on it as a mere 
engine in the Crown’s hands. “The nation,” he observed, in the Convention 
of 1787, “is in fact governed by the Cabinet council, who are the creatures of 
the Crown. The consent of Parliament is necessary to give sanction to their 
measures, and this they easily obtain by the influence of the Crown in ap¬ 
pointing to all offices of honour and profit.” It must be remembered that 
the House of Lords was far more powerful in 1787 than it now is, not only 
as a branch of the legislature, but in respect of the boroughs owned by the 
leading peers : and therefore the dependence of the ministry on the House of 
Commons was a less prominent feature of the Constitution than it is now. 

3 George III. had the advantage of being a national king, whereas his two 
predecessors had been Germans by language and habits as well as by blood. 
His popularity contributed to his influence in politics. Mrs. Papendiek’s Diary 
contains some amusing illustrations of the exuberant demonstrations of “loy¬ 
alty” which he excited. When he went to Weymouth for sea-bathing after 
his recovery from the first serious attack of lunacy, crowds gathered along the 
shore, and bands of music struck up “God save the King” when he ducked 
his head beneath the brine. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 281 


Dunning’s famous resolution, that “the power of the Crown 
has increased, is increasing, and ought to be diminished.” 1 

The greatest problem that free peoples have to solve is how 
to enable the citizens at large to conduct or control the execu¬ 
tive business of the state. England was in 1787 the only 
nation (the cantons of Switzerland were so small as scarcely 
to be thought of) that had solved this problem, first, by the 
development of a representative system, secondly, by giving 
to her representatives a large authority over the executive. 
The Constitutional Convention, therefore, turned its eyes to 
her when it sought to constitute a free government for the 
new nation which the “ more perfect union” of the States 
was calling into conscious being. 

Very few of the members of the Convention had been in 
England so as to know her constitution, such as it then was, 
at first hand. Yet there were three sources whence light fell 
upon it, and for that light they were grateful. One was their 
experience in dealing with the mother country since the quar¬ 
rel began. They saw in Britain an executive largely influ¬ 
enced by the personal volitions of the king, and in its conduct 
of colonial and foreign affairs largely detached from and inde¬ 
pendent of Parliament, since it was able to take tyrannical 
steps without the previous knowledge or consent of Parlia¬ 
ment, and able afterwards to defend those steps by alleging a 
necessity whereof Parliament, wanting confidential informa¬ 
tion, could imperfectly judge. It was in these colonial and 
foreign affairs that the power of the Crown chiefly lay (as, 
indeed, to this day the authority of Parliament over the exec¬ 
utive is smaller here than in any other department, because 
secrecy and promptitude are more essential), so they could 

1 It is not easy to say when the principle of the absolute dependence of minis¬ 
ters on a parliamentary majority without regard to the wishes of the Crown 
passed into a settled doctrine. (Needless to say that it has received no for¬ 
mally legal recognition, but is merely usage.) The long coincidence during the 
dominance of Pitt and his Tory successors down till 1827 of the wishes and 
interests of the Crown with those of the parliamentary majority prevented 
the question from arising in a practical shape. Even in 1827 Mr. Canning writes 
to J. W. Croker: — “ Am I to understand, then, that you consider the King 
[George IV.] as completely in the hands of the Tory aristocracy as his father, 
or rather as George II. was in the hands of the Whigs ? If so, George III. 
reigned and Mr. Pitt (both father and son) administered the Government in 
vain. I have a better opinion of the real vigour of the Crown when it chooses 
to put forth its own strength, and I am not without some reliance on the body 
of the people! ” — Croker Correspondence, vol. i. p. 368. 



282 


THE NATIONAL GOVERNMENT 


PART I 


not be expected to know for how much less the king counted 
in domestic affairs. Moreover, there was believed to be often 
a secret junto which really controlled the ministry, because 
acting in concert with the Crown; and the Crown had power¬ 
ful engines at its disposal, bribes and honours, pensions and 
places, engines irresistible by the average virtue of representa¬ 
tives whose words and votes were not reported, and nearly 
half of whom were the nominees of some magnate. 1 

The second source was the legal presentation of the English 
Constitution in scientific text-books, and particularly in Black- 
stone, whose famous Commentaries, first published in 1765 
(their substance having been delivered as professorial lectures 
at Oxford in 1758 and several succeeding years), had quickly 
become the standard authority on the subject. Now Black- 
stone, as is natural in a lawyer who looks rather to the strict 
letter of the law than to the practice which had grown up modi¬ 
fying it, describes the royal prerogative in terms more appro¬ 
priate to the days of the Stuarts than to those in which he 
wrote, and dwells on the independence of the executive, while 
also declaring the withholding from it of legislative power to 
be essential to freedom. 2 

The third source was the view of the English Constitution 
given by the political philosophers of the eighteenth century, 
among whom, since he was by far the most important, we need 
^ook at Montesquieu alone. 


1 George III. had pocket boroughs and a strong parliamentary following. 
Hamilton doubted whether the British Constitution could be worked without 
corruption. 

2 See Blackstone, Commentaries, bk. i. chap. ii.— “Whenever the power 
of making and that of enforcing the laws are united together, there can be no 
public liberty. . . . Where the legislative and executive authority are in dis¬ 
tinct hands, the former will take care not to entrust the latter with so large a 
power as may tend to the subversion of its own independence, and therewith 
of the liberty of the subject. . . . The Crown cannot of itself begin any altera¬ 
tion in the present established law ; but it may approve or disapprove of the 
alterations suggested and consented to by the two Houses. The legislative, 
therefore, cannot abridge the executive power of any rights which it now has 
by law without its own consent.” There is no hint here, or in chap. vii. on the 
royal prerogative, that the royal power of disapproval had not been in fact 
exercised for some fifty years. Blackstone does not quote Montesquieu for 
the particular proposition that the powers must be separated, but has evi¬ 
dently been influenced by him. A little later he cites a famous dictum, “The 
President Montesquieu, though I trust too hastily, presages that as Rome, 
Sparta, and Carthage have lost their liberty and perished, so the Constitution 
of England will in time lose its liberty — will perish : it will perish whenever 
the legislative power shall become more corrupt than the executive.” 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 283 


When the famous treatise on The Spirit of Laws appeared in 
1748, a treatise belonging to the small class of books which 
permanently turn the course of human thought, and which, un¬ 
like St. Augustine’s City of God , turned it speedily instead 
of having to wait for centuries till the hour of its power ar¬ 
rived, it dwelt upon the separation of the executive, legisla¬ 
tive, and judicial powers in the British Constitution as the 
most remarkable feature of that system. Accustomed to see 
the two former powers, and to some extent the third also, ex¬ 
ercised by or under the direct control of the French monarch, 
Montesquieu attributed English freedom to their separation. 1 
The King of Great Britain then possessed a larger prerogative 
than he has now, and as even then it seemed on paper much 
larger than it really was, it was natural that a foreign observer 
should underrate the executive character of the British Parlia¬ 
ment and overrate the personal authority of the monarch. 
Now Montesquieu’s treatise was taken by the thinkers of the 
next generation as a sort of Bible of political philosophy. Ham¬ 
ilton and Madison, the two earliest exponents of the Ameri¬ 
can Constitution they had done so much to create, cite it 
in the Federalist much as the schoolmen cite Aristotle, that 
is, as an authority to which everybody will bow; and Madison 
in particular constantly refers to this separation of the three 
powers as the distinguishing note of a free government. 

These views of the British Constitution tallied with and 
were strengthened by the ideas and habits formed in the Ameri¬ 
cans by their experience of representative government in the 
colonies, ideas and habits which were after all the dominant 
factor in the construction of their political system. In these 
colonies the executive power had been vested either in gov¬ 
ernors sent from England by the Crown, or in certain Pro¬ 
prietors, to whom the English Crown had granted hereditary 
rights in a province. Each representative assembly, while it 
made laws and voted money for the purposes of its respective 
commonwealth, did not control the governor, because his com¬ 
mission issued from the British Crown, and he was responsible 
thereto. A governor had no parliamentary cabinet, but only 
officials responsible to himself and the Crown. His veto on 

1 Locke had already remarked (On Civil Government, chap, xiv.) that the 
legislative and executive powers are in distinct hands in all moderated mon¬ 
archies and well-framed governments.” 




284 


THE NATIONAL GOVERNMENT 


PART I 


acts of the colonial legislature was frequently used; and that 
body, with no means of influencing his conduct other than the 
refusal to vote money, was a legislature and nothing more. 
Thus the Americans found and admired in their colonial (or 
State) systems, a separation of the legislative from the execu¬ 
tive branch, more complete than in England ; and being already 
proud of their freedom, they attributed its amplitude chiefly to 
this cause. 

From their colonial and State experience, coupled with these 
notions of the British Constitution, the men of 1787 drew three 
conclusions: First, that the vesting of the executive and the 
legislative powers in different hands was the normal and natu¬ 
ral feature of a free government. Secondly, that the power 
of the executive was dangerous to liberty, and must be kept 
within well-defined boundaries. Thirdly, that in order to 
check the head of the state it was necessary not only to define 
his powers, and appoint him for a limited period, but also to 
destroy his opportunities of influencing the legislature. Con¬ 
ceiving that ministers, as named by and acting under the orders 
of the President, would be his instruments rather than faithful 
representatives of the people, they resolved to prevent them 
from holding this double character, and therefore forbade 
“any person holding office under the United States” to be a 
member of either House. 1 They deemed that in this way they 
had rendered their legislature pure, independent, vigilant, the 
servant of the people, the foe of arbitrary power. Omnipo¬ 
tent, however, the framers of the Constitution did not mean to 
make it. They were sensible of the opposite dangers which 
might flow from a feeble and dependent executive. The pro¬ 
posal made in the first draft of the Constitution that Congress 
should elect the President, was abandoned, lest he should be 
merely its creature and unable to check it. To strengthen his 
position, and prevent intrigues among members of Congress for 
this supreme office, it was settled that the people should them¬ 
selves, through certain electors appointed for the purpose, 

1 In 1700 the English Act of Settlement enacted that “ no person who haa 
an office or a place of profit under the King shall be capable of serving as a 
member of the House of Commons.” This provision never took effect, having 
been repealed by the Act 4 Anne, c. 8. But the holding of the great majority 
of offices under the Crown is now, by statute, a disqualification for sitting in 
the House of Commons. See Anson, Law and Custom of the Constitution f 
vol. i. p. 174. 



chap, xxy AMERICAN AND EUROPEAN SYSTEMS 285 


choose the President. By giving him the better status of a 
popular, though indirect, mandate, he became independent of 
Congress, and was encouraged to use his veto, which a mere 
nominee of Congress might have hesitated to do. Thus it was 
believed in 1787 that a due balance had been arrived at, the 
independence of Congress being secured on the one side and 
the independence of the President on the other. Each power 
holding the other in check, the people, jealous of their hardly- 
won liberties, would be courted by each, and safe from the en¬ 
croachments of either. 

There was of course the risk that controversies as to their 
respective rights and powers would arise between these two 
departments. But the creation of a court entitled to place an 
authoritative interpretation upon the Constitution in which the 
supreme will of the people was expressed, provided a remedy 
available in many, if not in all, of such cases, and a security 
for the faithful observance of the Constitution which England 
did not, and under her system of an omnipotent Parliament 
could not, possess. 

“They builded better than they knew.” They divided the 
legislature from the executive so completely as to make each 
not only independent, but weak even in its own proper sphere. 
The President was debarred from carrying Congress along with 
him, as a popular prime minister may carry Parliament in 
England, to effect some sweeping change. He is fettered in 
foreign policy, and in appointments, by the concurrent rights 
of the Senate. He is forbidden to appeal at a crisis from Con¬ 
gress to the country. Nevertheless his office retains a meas¬ 
ure of solid independence in the fact that the nation regards 
him as a direct representative and embodiment of its majesty, 
while the circumstance that he holds office for four years only 
makes it possible for him to do acts of power during those four 
years which would excite alarm from a permanent sovereign. 
Entrenched behind the ramparts of a rigid Constitution, he has 
retained rights of which his prototype the English king has 
been gradually stripped. Congress on the other hand was 
weakened, as compared with the British Parliament in which 
one House has become dominant, by its division into two co¬ 
equal houses, whose disagreement paralyzes legislative action. 
And it lost that direct control over the executive which the 
presence of ministers in the legislature, and their dependence 





286 


THE NATIONAL GOVERNMENT 


PART 1 


upon a majority of the popular House, give to the Parliaments 
of Britain and her colonies. It has diverged widely from the 
English original which it seemed likely, with only a slight dif¬ 
ference, to reproduce. 

The British House of Commons has grown to the stature of 
a supreme executive as well as legislative council, acting not 
only by its properly legislative power, but through its right to 
displace ministers by a resolution of want of confidence, and 
to compel the sovereign to employ such servants as it approves. 
Congress remains a pure legislature, unable to displace a min¬ 
ister, unable to choose the agents by whom its laws are to be 
carried out, and having hitherto failed to develop that internal 
organization which a large assembly needs in order to frame 
and successfully pursue definite schemes of policy. Neverthe¬ 
less, so far-reaching is the power of legislation, Congress has 
encroached, and may encroach still farther, upon the sphere of 
the executive. It encroaches not merely with a conscious pur¬ 
pose, but because the law of its being has forced it to create in 
its committees bodies whose expansion necessarily presses on 
the executive. It encroaches because it is restless, unwearied, 
always drawn by the progress of events into new fields of labour. 

These observations may suffice to show why the Fathers of 
the Constitution did not adopt the English parliamentary or 
Cabinet system. They could not adopt it because they did not 
know of its existence. They did not know of it because it 
was still immature, because Englishmen themselves had not 
understood it, because the recognized authorities did not men¬ 
tion it. There is not a word in Blackstone, much less in 
Montesquieu, as to the duty of ministers to resign at the bid¬ 
ding of the House of Commons, nor anything to indicate that 
the whole fife of the House of Commons was destined to centre 
in the leadership of ministers. Whether the Fathers would 
have imitated the cabinet system had it been proposed to 
them as a model may bs doubted. They would probably 
have thought that the creation of a frame of government so 
unified, so strong, so capable of swiftly and irresistibly accom¬ 
plishing the purposes of a transitory majority as we now per¬ 
ceive it to be, might prove dangerous to those liberties of the 
several States, as well as of individual citizens, which filled the 
whole background of their landscape. But as the idea never 
presented itself, we cannot say that it was rejected, nor cite 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 281 


the course they took as an expression of their judgment against 
the system under which England and her colonies have so far 
prospered. 

That system could not be deemed to have reached its ma¬ 
turity till the power of the people at large had been established 
by the Reform Act of 1832. For its essence resides in the 
delicate equipoise it creates between the three powers, the 
ministry, the House of Commons, and the people. The House 
is strong, because it can call the ministry to account for every 
act, and can, by refusing supplies, compel their resignation. 
The ministry are not defenceless, because they can dissolve 
Parliament, and ask the people to judge between it and them. 
Parliament, when it displaces a ministry, does not strike at 
executive authority: it merely changes its agents. The min¬ 
istry, when they dissolve Parliament, do not attack Parlia¬ 
ment as an institution : they recognize the supremacy of the 
body in asking the country to change the individuals who com¬ 
pose it. Both the House of Commons and the ministry act 
and move in the full view of the people, who sit as arbiters, 
prepared to judge in any controversy that may arise. The 
House is in touch with the people, because every member 
must watch the lights and shadows of sentiment which play 
over his own constituency. The ministry are in touch with 
the people, because they are not only themselves representa¬ 
tives, but are heads of a great party, sensitive to its feelings, 
forced to weigh the effect of every act they do upon the con¬ 
fidence which their party places in them. The only conjunc¬ 
ture which this system of “checks and balances” does not 
provide for is that of a ministry supported by a parliamentary 
majority pursuing a policy not presented to the people at the 
last general election, and of which the bulk of the people in 
fact disapprove. 1 This is a real danger, yet one which can 
seldom last long enough to work grave mischief, for the organs 
of public opinion are now so potent, and the opportunities for 
its expression so numerous, that the anger of a popular majority, 
perhaps even of a very strong minority, is likely to alarm both 
the ministry and the House, and to arrest them in their course. 2 

1 A good example is furnished by the case of Lord Beaconsfield s Govern¬ 
ment from 1876 till 1880. , f 

2 “The dangers arising from a party spirit in Parliament exceeding that oi 
the nation, and of a selfishness in Parliament contradicting the true interest oi 
the nation, are not great dangers in a country where the mind of the nation it 



288 


THE NATIONAL GOVERNMENT 


PART i 


The drawback to this system of exquisite equipoise is the 
liability of its equilibrium to be frequently disturbed, each dis¬ 
turbance involving either a change of government, with immense 
temporary inconvenience to the departments, or a general elec¬ 
tion, with immense expenditure of money and trouble in the 
country. It is a system whose successful working presupposes 
the existence of two great parties and no more, parties each 
strong enough to restrain the violence of the other, yet one of 
them steadily preponderant in any given House of Commons. 
Where a third, perhaps a fourth, party appears, the conditions 
are changed. The scales of Parliament oscillate as the weight 
of this detached group is thrown on one side or the other; dis¬ 
solutions become more frequent, and even dissolutions may fail 
to restore stability. The history of the Third French Republic 
has shown the difficulties of working a Chamber composed of 
groups : and the same source of difficulty has more recently 
appeared in England. 1 

It is worth while to compare the form which a constitutional 
struggle takes under the Cabinet system and under that of 
America. 

In England, if the executive ministry displeases the House 
of Commons, the House passes an adverse vote. The ministry 
have their choice to resign or dissolve Parliament. If they 
resign, a new ministry is appointed from the party which has 
proved itself strongest in the House of Commons ; and co-oper¬ 
ation being restored between the legislature and the executive, 
public business proceeds. If, on the other hand, the ministry 
dissolve Parliament, a new Parliament is sent up which, if 
favourable to the existing cabinet, keeps them in office, if un¬ 
favourable, dismisses them forthwith. 2 Accord is in either 

steadily political, and where its control over its representatives is constant. 
A steady opposition to a formed public opinion is hardly possible in our House 
of Commons, so incessant is the national attention to politics, and so keen the 
fear in the mind of each member that he may lose his valued seat.” — Walter 
Bagehot, English Constitution, p. 241. These remarks of the most acute of 
English political writers written in 1872 are still true. 

1 An organized Third Party grew up in The House of Commons between 1874 
and 1880, and an organized Fourth Party appeared in 1906. 

2 Recent instances, dating from Mr. Disraeli’s resignation in December 
1868, when the results of the election of that year were ascertained, have es¬ 
tablished the usage that a ministry quits office, without waiting to be turned 
out, when they know that the election has given a decisive majority to the oppo¬ 
sition. The precedent was followed in 1874, 1880, and 1886, but not in 1885 and 
1892, when the “regular” Opposition had not an absolute majority, though the 
ministry was beaten. The usage, however, is not yet a rule of the Constitution. 




chap, xxv AMERICAN AND EUROPEAN SYSTEMS 289 


case restored. Should the difference arise between the/House 
of Lords and a ministry supported by the House of Commons, 
and the former persist in rejecting a bill which the Commons 
send up, a dissolution is the usual remedy; and if the newly- 
elected House of Commons reasserts the view of its prede¬ 
cessor, the Lords, according to the now recognized constitu¬ 
tional practice, yield at once. Should they, however, still stand 
out, there remains the extreme expedient, threatened in 1832, 
but never yet resorted to, of a creation by the sovereign ( i.e . 
the ministry) of new peers sufficient to turn the balance of votes 
in the Upper House. Practically the ultimate decision always 
rests with the people, that is to say, with the party which for the 
moment commands a majority of electoral votes. This method 
of cutting knots applies to all differences that can arise between 
executive and legislature. It is a swift and effective method; 
in this swiftness and effectiveness lie its dangers as well as its 
merits. 

In America a dispute between the President and Congress 
may arise over an executive act or over a bill. If over an 
executive act, an appointment or a treaty, one branch of Con¬ 
gress, the Senate, can check the President, that is, can prevent 
him from doing what he wishes, but cannot make him do what 
they wish. If over a bill which the President has returned to 
Congress unsigned, the two Houses can, by a two-thirds majority, 
pass it over his veto, and so end the quarrel; though the carry¬ 
ing out of the bill in its details must be left to him and his minis¬ 
ters, whose dislike of it may render them unwilling and therefore 
unsuitable agents. Should there not be a two-thirds majority, 
the bill drops; and however important the question may be, 
however essential to the country some prompt dealing with it, 
either in the sense desired by the majority of Congress, or in 
that preferred by the President, nothing can be done till the 
current term of Congress expires. The matter is then remitted 
to the people. If the President has still two more years in 
office, the people may signify their approval of his policy by 
electing a House in political agreement with him, or disapprove 
it by re-electing a hostile House. If the election of a new Presi¬ 
dent coincides with that of the new House, the people have 
a second means provided of expressing their judgment. They 
may choose not only a House of the same or an opposite com¬ 
plexion to the last, but a President of the same or an opposite 
u 



£90 


THE NATIONAL GOVERNMENT 


PART I 


complexion. Anyhow they can now establish accord between one 
House of Congress and the executive. 1 The Senate, however, may 
still remain opposed to the President, and may not be brought 
into harmony with him until a sufficient time has elapsed for 
the majority in it to be changed by the choice of new senators 
by the State legislatures. This is a slower method than that 
of Britain. It may fail in a crisis needing immediate action; 
but it escapes the danger of a hurried and perhaps irrevocable 
decision. 

Englishmen deem it a merit in their system that the prac¬ 
tical executive of the country is directly responsible to the 
House of Commons. In the United States, however, not only 
in the national government, but in every one of the States, the 
opposite doctrine prevails — that the executive should be wholly 
independent of the legislative branch. Americans understand 
that this scheme involves a loss of power and efficiency, but they 
believe that it makes greatly for safety in a popular government. 
They expect the executive and the legislature to work together 
as well as they can, and public opinion does usually compel a 
degree of co-operation and efficiency which perhaps could not 
be expected theoretically. It is an interesting commentary 
on the tendencies of democratic government, that in America 
reliance is coming to be placed more and more, in the nation, 
in the State, and in the city, upon the veto of the Executive 
as a protection to the community against the legislative branch. 
Weak Executives frequently do harm, but a strong Executive has 
rarely abused popular confidence. On the other hand, instances 
where the Executive, by the use of his veto power, has arrested 
mischiefs due to the action of the legislature are by no means 
rare. This circumstance leads some Americans to believe that 
the day is not far distant when in England some sort of veto 
power, or other constitutional safeguard, must be interposed 
to protect the people against a hasty decision of their representa¬ 
tives. 

While some bid England borrow from her daughter, other 

1 It is of course possible that the people may elect at the same time a Presi¬ 
dent belonging to one party and a House the majority whereof belongs to 
the other party. This happened in 1848, and again in 1876, when, however, 
the presidential election was disputed. It is rendered possible by the fact that 
the President is elected on a different plan from the House, the smaller States 
having relatively more weight in a presidential election, and the presidential 
electors being now chosen by “general ticket,” not in districts. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 291 


Americans (including two Presidents), conceiving that the separa¬ 
tion of the legislature from the executive has been carried too far 
in the United States, have suggested that the ministers of the 
President might be permitted to appear in both Houses of Con¬ 
gress to answer questions, perhaps even to join in debate. It 
may be urged in support of this proposal that there is too much 
particularism in Congress and too strong a tendency to allow 
private moneyed “ interests ”• to prevail against those general in¬ 
terests of the country as a whole which a British Ministry is 
held bound to protect, and can by its command of the majority 
secure. But it might lead to changes more extensive than its 
advocates seem to contemplate. The more the President’s 
ministers come into contact with Congress, the more difficult 
might it be to maintain the independence of Congress which he 
and they now possess. When, before the separation of Nor¬ 
way from Sweden, the Norwegian Stor Thing forced the King 
to consent to his ministers appearing in that legislature, the 
king, perceiving the import of the concession, resolved to 
choose in future ministers in accord with the party holding a 
majority in the Stor Thing. It is hard to say, when one begins 
to make alterations in an old house, how far one will be led on in 
rebuilding, and this change in the present American system, 
probably in itself desirable,' might be found to involve a recon¬ 
struction large enough to put a new face upon several parts of 
that system. 

In the history of the United States there have been four 
serious conflicts between the legislature and the executive. 
The first was that between President Jackson and Congress. 
It ended in Jackson’s favour, for he got his way; but he pre¬ 
vailed because during the time when both Houses were against 
him, his opponents had not a two-thirds majority. In the lat¬ 
ter part of the struggle the (re-elected) House was with him ; and 
before he had quitted office his friends obtained a majority 
in the always-changing Senate. But his success was not so 
much the success of the executive office as of a particular Presi¬ 
dent popular with the masses. The second contest, which was 
between President Tyler and both Houses of Congress, was a 
drawn battle, because the majority in the Houses fell short of 
two-thirds. In the third, between President Johnson and 
Congress, Congress prevailed; the enemies of the President 
having, owing to the disfranchisement of most Southern States, 



292 


THE NATIONAL GOVERNMENT 


PART I 


an overpowering majority in both Houses, and by that majority 
carrying over his veto a series of Acts so peremptory that even 
his reluctance to obey them could not destroy, though it some¬ 
times marred, their efficiency. In the fourth case, referred to 
in a previous chapter, the victory remained with the President, 
because the Congressional majority against him was slender. 
But a presidential victory is usually a negative victory. It 
consists not in his getting what he wants, but in his prevent¬ 
ing Congress from getting what it wants. 1 The practical re¬ 
sult of the American arrangements thus comes to be that when 
one party possesses a large majority in Congress it can over¬ 
power the President, taking from him all but a few strictly 
reserved functions, such as those of pardoning, of making pro¬ 
motions in the army and navy, and of negotiating (not of con¬ 
cluding treaties, for these require the assent of the Senate) 
with foreign states. Where parties are pretty equally divided, 
i.e. when the majority is one way in the Senate, the other way 
in the House, or when there is only a small majority against 
the President in both Houses, the President is in so far free 
that new fetters cannot be laid upon him; but he must move 
under those which previous legislation has- imposed, and can 
take no step for which new legislation is needed. 

It is another and a remarkable consequence of the absence of 
cabinet government in America, that government does not mean 
the same thing there that it does in Europe. In France, Italy, 
and England the term means, that one set of men, united, 
or professing to be united, by holding one set of opinions, have 
obtained control of the whole machinery of government, and 
are working it in conformity with those opinions. Their 
majority in the country is represented by a majority in the 
legislature, and to this majority the ministry of necessity belongs. 
The ministry is the supreme committee of the party, and con¬ 
trols all the foreign as well as domestic affairs of the nation, 
because the majority is deemed to be the nation. It is other¬ 
wise in America. Men do, no doubt, talk of one party as being 
“in power,” meaning thereby the party to which the then 
President belongs. But they do so because that party enjoys 

1 In the famous case of President Jackson’s removal of the government 
deposits of money from the United States Bank, the President did accomplish 
his object. But this was a very exceptional case, being one which had remained 
within the executive discretion of the President, since no statute had happened 
to provide for it. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 292 


the spoils of office, in which to so many politicians the value 
of power consists. They do so also because in the early days the 
party which prevailed in the legislative usually prevailed also 
in the executive department, and because the presidential 
election was, and still is, the main struggle which proclaimed the 
predominance of one or other party. 1 

But the Americans, when they speak of the Administration 
party as the party in power, have, in borrowing an English 
phrase, applied it to utterly different facts. Their “party in 
power” need have no “power” beyond that of securing places 
for its adherents. It may be in a minority in one House of 
Congress, in which event it accomplishes nothing, but can at 
most merely arrest adverse legislation, or in a small minority 
in both Houses of Congress, in which event it must submit to 
see many things done which it dislikes. And if its enemies 
control the Senate, even its executive arm is paralyzed. Though 
party feeling has generally been stronger in America than in 
England, and even now covers a larger proportion of the voters, 
and enforces a stricter discipline, party government is in this 
respect weaker. 

Those who lament the violence of European factions may 
fancy America an Elysium where legislation is just and reason¬ 
able, because free from bias, where pure and enlarged views of 
national interest override the selfish designs of politicians. It 
would be nearer the truth to say that the absence of party 
control operates chiefly to make laws less consistent, and to 
prevent extended schemes of policy from being framed, because 
the chance of giving continuous effect to them is small. The 
natural history of the party system, and of the methods whereby 
it is worked, belongs to a later part of this book. The system 
is complete, the methods are elaborate, but the Constitution 
opposes obstacles unknown in France or England to the complete 
control by a party of the whole government of the country. 

We are now in a position to sum up the practical results 
of the scheme which purports to separate Congress from the 
executive, instead of uniting them as they are united under a 

1 The history of the Republic divides itself in the mind of most Americans 
into a succession of Presidents and Administrations, just as old-fashioned his¬ 
torians divided the history of England by the reigns of kings, a tolerable way 
of reckoning in the days of the Plantagenet monarchs, when the personal gifts 
of the sovereign were a chief factor in affairs, but absurd in the days of George 
the Fourth and William the Fourth. 



294 


THE NATIONAL GOVERNMENT 


PART I 


Cabinet government. I say “purports to separate,” because 
the separation, significant as it is, is less complete than current 
language imports, or than the Fathers of the Constitution would 
seem to have intended. The necessary coherence of the two 
powers baffled them. The results are five : — 

The President and his ministers have no initiative in Con¬ 
gress, little influence over Congress, except what they 
can exert upon individual members, through the be¬ 
stowal of patronage, or upon their party in Congress by 
threatening it with popular displeasure. 

Congress has, together with unlimited powers of inquiry, 
imperfect powers of control over the administrative 
departments. 

The nation does not always know how or where to fix respon¬ 
sibility for misfeasance or neglect. The person and 
bodies concerned in making and executing the laws are 
so related to one another that each can generally shift 
the burden of blame on some one else, and no one acts 
under the full sense of direct accountability. 

There is a loss of force by friction — i.e. part of the energy, 
force, and time of the men and bodies that make up the 
government is dissipated in struggles with one another. 
This belongs to all free governments, because all free 
governments rely upon checks. But the more checks, 
the more friction. 

There is a risk that executive vigour and promptitude may 
be found wanting at critical moments. 

We may include these defects in one general expression. 
There is in the American government, considered as a whole, a 
want of unity. Its branches are unconnected ; their efforts are 
not directed to one aim, do not produce one harmonious result. 
The sailors, the helmsman, the engineer, do not seem to have 
one purpose or obey one will, so that instead of making steady 
way the vessel may pursue a devious or zigzag course, and 
sometimes merely turn round and round in the water. The 
more closely any one watches from year to year the history of 
free governments, and himself swims in the deep-eddying time 
current, the more does he feel that current’s force, so that hu¬ 
man foresight and purpose seem to count for little, and minis¬ 
ters and parliaments to be swept along they know not whither 
by some overmastering fate or overruling providence. But 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 295 


this feeling is stronger in America than in Europe, because in 
America such powers as exist act with little concert and resign 
themselves to a conscious impotence. Clouds arise, blot out 
the sun overhead, and burst in a tempest; the tempest passes, 
and leaves the blue above bright as before, but at the same mo¬ 
ment other clouds are already beginning to peer over the horizon. 
Parties are formed and dissolved, compromises are settled and 
assailed and violated, wars break out and are fought through 
and forgotten, new problems begin to show themselves, and the 
civil powers, Presidents, and Cabinets, and State governments, 
and Houses of Congress, seem to have as little to do with all 
these changes, as little ability to foresee or avert or resist them, 
as the farmer, who sees approaching the tornado which will 
uproot his crop, has power to stay its devastating course. 

A President can do little, for he may not be in a position to 
lead either Congress or the nation. Congress cannot guide 
or stimulate the President, nor replace him by a man fitter for the 
emergency. The Cabinet neither receive a policy from Congress 
nor give one to it. Each power in the state goes its own way, 
or wastes precious moments in discussing which way it shall go, 
and that which comes to pass seems to be a result not of the action 
of the legal organs of the state, but of some larger force which 
at one time uses their discord as its means, at another neglects 
them altogether. This at least is the impression which the 
history of the greatest problem and greatest struggle that 
America has seen, the struggle of the slaveholders against the 
Free Soil and Union party, culminating in the War of Secession, 
makes upon one who looking back on its events sees them 
all as parts of one drama. Inevitable the struggle may have 
been; and in its later stages passion had grown so hot, and the 
claims of the slaveholders so extravagant, that possibly under 
no scheme of government — so some high American authorities 
hold — could a peaceful solution have been looked for. Yet 
it must be remembered that the carefully devised machinery of 
the Constitution did little to solve that problem or avert that 
struggle, while the system of divided and balanced and limited 
powers, giving every advantage to those who stood by the ex¬ 
isting law, and placing the rights of the States behind the 
bulwarks of an almost unalterable instrument, may have tended 
to aggravate the spirit of uncompromising resistance. The na¬ 
tion asserted itself at last, but not till the resources which the 




296 


THE NATIONAL GOVERNMENT 


PART I 


Constitution provided for the attainment of a peaceful solution 
had irretrievably failed. 

Not wholly dissimilar was the course of events in the first 
years of the French Revolution. The Constitution framed by 
the National Assembly in 1791 so limited the functions and au¬ 
thority of each power in the state that no one person, no one 
body, was capable of leading either the nation or the legisla¬ 
ture, or of framing and maintaining a constructive policy. 
Things were left to take their own course. The boat drifted 
to the rapids, and the rapids hurried her over the precipice. 1 

This want of unity is painfully felt in a crisis. When a sudden 
crisis comes upon a free state, the executive needs two things, 
a large command of money and powers in excess of those 
allowed at ordinary times. Under the European system the 
duty of meeting such a crisis is felt to devolve as much on the 
representative Chamber as on the ministers who are its agents. 
The Chamber is therefore at once appealed to for supplies, and 
for such legislation as the occasion demands. When these 
have been given, the ministry moves on with the weight of the 
people behind it; and as it is accustomed to work at all times 
with the Chamber, and the Chamber with it, the piston plays 
smoothly and quickly in the cylinder. In America the Presi¬ 
dent has at ordinary times little to do with Congress, while 
Congress is unaccustomed to deal with executive questions. 
Its machinery, and especially the absence of ministerial leaders 
and consequent want of organization, unfit it for promptly 
confronting practical troubles. It is apt to be sparing of supplies, 
and of that confidence which doubles the value of supplies. 
Jealousies of the executive, which are proper in quiet times and 
natural towards those with whom Congress has little direct 
intercourse, may now be perilous, yet how is Congress to trust 
persons not members of its own body nor directly amenable to 
its control ? When dangers thicken the only device may be the 
Roman one of a temporary dictatorship. Something like this 
happened in the War of Secession, for the powers then conferred 
upon President Lincoln, or exercised without Congressional 
censure by him, were almost as much in excess of those enjoyed 

1 This Constitution of 1791 was framed under the same idea of the need for 
separating the executive and legislative departments which prevailed at Phila¬ 
delphia in 1787. For want of a legitimate supreme power, power at last fell 
into the hands of the Committee of Public Safety, and afterwards of the Direc¬ 
tory. 



chap, xxv AMERICAN AND EUROPEAN SYSTEMS 297 


under the ordinary law as the authority of a Roman dictator 
exceeded that of a Roman consul. 1 Fortunately the habits of 
legality, which lie deep in the American as they did in the Roman 
people, reasserted themselves after the war was over, as they 
were wont to do at Rome in her earlier and better days. When 
the squall had passed the ship righted, and she has pursued 
her subsequent course on as even a keel as before. 

The defects of the tools are the glory of the workman. The 
more completely self-acting is the machine, the smaller is the 
intelligence needed to work it; the more liable it is to derange¬ 
ment, so much greater must be the skill and care applied by one 
who tends it. The English Constitution, which we admire 
as a masterpiece of delicate equipoises and complicated mech¬ 
anism, would anywhere but in England be full of difficulties and 
dangers. It stands and prospers in virtue of the traditions 
that still live among English statesmen and the reverence that 
has ruled English citizens. It works by a body of understand¬ 
ings which no writer can formulate, and of habits which centuries 
have been needed to instil. So the American people have a 
practical aptitude for politics, a clearness of vision and capacity 
for self-control never equalled by any other nation. In 1861 
they brushed aside their darling legalities, allowed the executive 
to exert novel powers, passed lightly laws whose constitutionality 
remains doubtful, raised an enormous army, and contracted 
a prodigious debt. Romans could not have been more ener¬ 
getic in their sense of civic duty, nor more trustful to their 
magistrates. When the emergency had passed away the torrent 
which had overspread the plain fell back at once into its safe 
and well-worn channel. The reign of legality returned, and 
only four years after the power of the executive had reached 
its highest point in the hands of President Lincoln, it was reduced 
to its lowest point in those of President Johnson. Such a people 
can work any Constitution. The danger for them is that this 
reliance on their skill and their star may make them heedless 
of the faults of their political machinery, slow to devise improve¬ 
ments which are best applied in quiet times. 

i For Lincoln’s argument respecting his use of extraordinary powers, see 
note to Chapter XXXIV. post. 



CHAPTER XXVI 


GENERAL OBSERVATIONS ON THE FRAME OF NATIONAL 
GOVERNMENT 

The account which has been so far given of the working 
of the American Government has been necessarily an account 
rather of its mechanism than of its spirit. Its practical character, 
its temper and colour, so to speak, largely depend on the party 
system by which it is worked, and on what may be called the 
political habits of the people. These will be described in later 
chapters. Here, however, before quitting the study of the 
constitutional organs of government, it is well to sum up the 
criticisms we have been led to make, and to add a few remarks, 
for which no fitting place could be found in preceding chapters, 
on the general features of the national government. 

I. No part of the Constitution cost its framers so much time 
and trouble as the method of choosing the President. They 
saw the evils of a popular vote. They saw also the objections 
to placing in the hands of Congress the election of a person whose 
chief duty it was to hold Congress in check. The plan of having 
him selected by judicious persons, especially chosen by the people 
for that purpose, seemed to meet both difficulties, and was there¬ 
fore recommended with confidence. The presidential electors 
have, however, turned out mere cyphers, and the President is 
practically chosen by the people at large. The only importance 
which the elaborate machinery provided in the Constitution 
retains, is that it prevents a simple popular vote in which the 
majority of the nation should prevail, and makes the issue of the 
election turn on the voting in certain “pivotal” States. 

II. The choice of the President, by what is now practically 
a simultaneous popular vote, not only involves once in every 
four years a, tremendous expenditure of energy, time, and 
money, but induces a sort of crisis which, if it happens to 
coincide with any passion powerfully agitating the people, may 
be dangerous to the commonwealth. 

298 


chap, xxvi FRAME OF NATIONAL GOVERNMENT 299 


III. There is a risk that the result of a presidential 
election may be doubtful or disputed on the ground of error, 
fraud, or violence. When such a case arises, the difficulty of 
finding an authority competent to deal with it, and likely to 
be trusted, is extreme. Moreover, the question may not be 
settled until the pre-existing executive has, by effluxion of 
time, ceased to have a right to the obedience of the citizens. 
The experience of the election of 1876 illustrates these dangers. 
Such a risk of interregna is incidental to all systems, monarchic 
qr republican, which make the executive head elective, as wit¬ 
ness the Romano-Germanic Empire of the Middle Ages, and the 
Papacy. But it is more serious where he is elected by the people 
than where, as in France or Switzerland, he is chosen by the 
Chambers. 1 

IV. The change of the higher executive officers, and of many 
of the lower executive officers also, which usually takes place 
once in four years, gives a jerk to the machinery, and causes 
a discontinuity of policy, unless, of course, the President has 
served only one term, and is re-elected. Moreover, there is 
generally a loss either of responsibility or of efficiency in the 
executive chief magistrate during the last part of his term. 
An outgoing President may possibly be a reckless President, 
because he has little to lose by misconduct, little to hope from 
good conduct. He may therefore abuse his patronage, or gratify 
his whims with impunity. But more often he is a weak Presi¬ 
dent. 2 He has little influence with Congress, because his pat¬ 
ronage will soon come to an end, little hold on the people, who 
are already speculating on the policy of his successor. His 
secretary of state may be unable to treat boldly with foreign 
powers, who perceive' that he has a diminished influence in the 
Senate, and know that the next secretary may have different 
views. 

The question whether the United States, which no doubt 
needed a President in 1789 to typify the then created political 


1 In Switzerland the Federal Council of seven are elected by the two Cham¬ 
bers, and then elect one of their own number to be their President, and there¬ 
with also President of the Confederation (Constit. of 1874, art. ). n some 
British colonies it has been provided that, in case of the absence or death or 
incapacity of the Governor, the Chief Justice shall act as Governor. n n la 
the senior member of Council acts in similar cases for the Viceroy. < 

2 A British House of Commons in the last few months before its impending 
dissolution usually presents the same alternations of reckless electioneering 
and of a feebleness which recoils from any momentous decision. 



300 


THE NATIONAL GOVERNMENT 


PART I 


unity of the nation, might not now dispense with one, has never 
been raised in America, where the people, though dissatisfied 
with the method of choice, value the office because it is inde¬ 
pendent of Congress and directly responsible to the people. 
Americans condemn any plan under which, as once befell in 
France, the legislature can drive a President from power and 
itself proceed to choose a new one. 1 

V. The Vice-President’s office is ill-conceived. His only 
ordinary function is to act as Chairman of the Senate, but as 
he does not appoint the Committees of that House, and has not 
even a vote (except a casting vote in it), this function is of little 
moment. If, however, the President dies, or becomes incapable 
of acting, or is removed from office, the Vice-President succeeds 
to the Presidency. What is the result? The place being in 
itself unimportant, the choice of a candidate for it excites little 
interest, and is chiefly used by the party managers as a means 
of conciliating a section of their party. It becomes what is 
called “a complimentary nomination.” The man elected 
Vice-President is therefore rarely if ever, when selected, a man 
in the front rank. But when the President dies during his term 
of office, which has happened to five out of the twenty ^Presi¬ 
dents, this possibly second-class man steps into a great place for 
which he was never intended. Sometimes, as in the case of Mr. 
Arthur, he fills the place respectably. Sometimes, as in that 
of Andrew Johnson, he throws the country into confusion. 

He is aut nullus aut Ccesar. 

VI. The defects in the structure and working of Congress, 
and in its relations to the executive, have been so fully dwelt 
on already that it is enough to refer summarily to them. They 
are — 

The discontinuity of Congressional policy. 

The want of adequate control over officials. 

The want of opportunities for the executive to influence the 
legislature. 

The want of any authority charged to secure the passing of 
such legislation as the country needs. 

The frequency of disputes between three co-ordinate powers, 
the President, the Senate, and the House. 

The maintenance of a continuous policy is a difficulty in all 

1 The question of replacing the President by a ministerial council is very 
rarely discussed in America. It has been mooted in France. 



chap, xxvi FRAME OF NATIONAL GOVERNMENT 301 


popular governments. In the United States it is specially so, 
because — 

The executive head and his ministers are necessarily (unless 
when a President is re-elected) changed once every four 
years. 

One House of Congress is changed every two years. 

Neither House recognizes permanent leaders. 

No accord need exist between Congress and the executive. 

There may not be such a thing as a Party in Power, in the 
European sense, because the party to which the Executive 
belongs may be in a minority in one or both Houses of Con¬ 
gress, in which case it cannot do anything which requires fresh 
legislation, — may be in a minority in the Senate, in which case 
it can take no administrative act of importance. 

There is little true leadership in political action, because 
the most prominent man has no recognized party authority. 
Congress was not elected to support him. He cannot threaten 
disobedient followers with a dissolution of Parliament like an 
English prime minister. He has not even the French presi¬ 
dent’s right of dissolving the House with the consent of the 
Senate. 

There is often no general and continuous cabinet policy, 
because the cabinet has no authority over Congress, may per¬ 
haps have no influence with it. 

There is no general or continuous legislative policy, because 
the legislature, having neither recognized leaders, nor a guid¬ 
ing committee, acts through a large number of committees, 
independent of one another, and seldom able to bring their 
measures to maturity. What continuity exists is due to the 
general acceptance of a few broad maxims, such as that of 
non-intervention in the affairs of the Old World, and to the 
fact that a large nation does not frequently or lightly change 
its views upon leading principles. In minor matters of legis¬ 
lation there is little settled policy, for the Houses trifle with 
questions, take them up in one session and drop them the 
next, seem insensible to the duty of completing work once 
begun, and are too apt to yield to the pressure which small 
sections, or even influential individuals in their constituencies, 
exert upon them to arrest some measure the public interest 
demands. Neither is there any security that Congress will 
attend to such defects in the administrative system of the 



302 


THE NATIONAL GOVERNMENT 


PART I 


country as may need a statute to correct them. In Europe 
the daily experience of the administrative departments dis- 
closras faults or omissions in the law which involve needless 
trouble to officials, needless cost to the treasury, needless in¬ 
justice to classes of the people. Sometimes for their own 
sakes, sometimes from that desire to see things well done 
which is the life-breath of a good public servant, the perma¬ 
nent officials call the attention of their parliamentary chief, 
the minister, to the defective state of the law, and submit to 
him the draft of a bill to amend it. He brings in this bill, 
and if it involves no matter of political controversy (which it 
rarely does), he gets it passed. As an American minister has 
no means (except by the favour of a committee) of getting 
anything he proposes attended to by Congress, it is a mere 
chance if such amending statutes as these are introduced or 
pass into law. And it sometimes happens that when he sees 
the need for an improvement he cannot carry it, because selfish 
interests oppose it, and he has not that command of a majority 
by means of which a European minister is able to effect reforms. 

These defects are all reducible to two. There is an exces¬ 
sive friction in the American system, a waste of force in the 
strife of various bodies and persons created to check and bal¬ 
ance one another. There is a want of executive unity, and 
therefore a possible want of executive vigour. Power is so 
much subdivided that it is hard at a given moment to concen¬ 
trate it for prompt and effective action. In fact, this happens 
only when a distinct majority of the people are so clearly of 
one mind that the several co-ordinate organs of government 
obey this majority, uniting their efforts to serve its will. 

VII. The relations of the people to the legislature are in 
every free country so much the most refined and delicate, as 
well as so much the most important part of the whole scheme 
and doctrine of government, that we must not expect to find 
perfection anywhere. But comparing America with Great 
Britain since 1832, the working of the representative system in 
America seems somewhat inferior. 

There are four essentials to the excellence of a representa¬ 
tive system: — 

That the representatives shall be chosen from among the 
best men of the country, and, if possible, from its natural 
leaders. 



chap, xxvi FRAME OF NATIONAL GOVERNMENT 


303 


That they shall be strictly and palpably responsible to their 
constituents for their speeches and votes. 

That they shall have courage enough to resist a momentary 
impulse of their constituents which they think mischiev¬ 
ous, i.e. shall be representatives rather than mere delegates. 

That they individually, and the Chamber they form, shall 
have a reflex action on the people, i.e. that while they 
derive authority from the people, they shall also give 
the people the benefit of the experience they acquire in 
the Chamber, as well as of the superior knowledge and 
capacity they may be presumed to possess. 

Americans hold, and no doubt correctly, that of these four 
requisites, the first, third, and fourth are not attained in their 
country. Congressmen are not chosen from among the best 
citizens. They mostly deem themselves mere delegates. They 
do not pretend to lead the people, being indeed seldom spe¬ 
cially qualified to do so. 

That the second requisite, responsibility, is not fully real¬ 
ized seems surprising in a democratic country, and indeed 
almost inconsistent with that conception of the representa¬ 
tive as a delegate, which is supposed, perhaps erroneously, 
to be characteristic of democracies. Still the fact is there. 
One cause, already explained, is to be found in the committee 
system. Another is the want of organized leadership in Con¬ 
gress. In Europe, a member’s responsibility takes the form 
of his being bound to support the leader of his party on all 
important divisions. In America, this obligation attaches 
only when the party has “gone into caucus,” and there re¬ 
solved upon its course. Not having the right to direct, the 
leader cannot be held responsible for the action of the rank 
and file. As a third cause we may note the fact that owing to 
the restricted competence of Congress many of the questions 
which chiefly interest the voter do not come before Congress 
at all, so that its proceedings are not followed with that close 
and keen attention which the debates and divisions of Euro¬ 
pean Chambers excite, and some may think that a fourth cause 
is found in the method by which candidates for membership of 
Congress are selected. That method is described in later 
chapters (see Chaps. LIX. to LXVI. post). Its effect has been 
to make Congressmen (including Senators) be, and feel them¬ 
selves to be, the nominees of the party organizations rather 




304 


THE NATIONAL GOVERNMENT 


PART l 


than of the citizens, and thus it has interposed what may for 
some purposes be called a sort of non-conducting medium be¬ 
tween the people and their representatives. 

In general the reciprocal action and reaction between the 
electors and Congress, what is commonly called the “touch” 
of the people with their agents, is not sufficiently close, quick, 
and delicate. Representatives ought to give light and leading 
to the people, just as the people give stimulus and momentum 
to their representatives. This incidental merit of the parlia¬ 
mentary system is among its greatest merits. But in America the 
action of the voter does not fully tell upon Congress. He votes 
for a candidate of his own party, but he does not convey to that 
candidate an impulse towards the carrying of particular meas¬ 
ures, because the candidate when in Congress will be practi¬ 
cally unable to promote those measures, unless he happens to 
be placed on the committee to which they are referred. Hence 
the citizen, when he casts his ballot, can seldom feel that he 
is advancing any measure or policy, except the vague and 
general policy indicated in his party platform. He is voting 
for a party, but he does not know what the party will do, and 
for a man, but a man whom chance may deprive of the oppor¬ 
tunity of advocating the measures he cares most for. 

Conversely, Congress does not guide and illuminate its con¬ 
stituents. It is amorphous, and has little initiative. It does 
not focus the light of the nation, does not warm its imagination, 
does not dramatize principles in the deeds and characters of 
men. 1 This happens because, in ordinary times, it lacks great 
leaders, and the most obvious cause why it lacks them, is its 
disconnection from the executive. As it is often devoid of 
such men, so neither does the country habitually come to it to 
look for them. In the old days, neither Hamilton, nor Jeffer¬ 
son, nor John Adams, in later days, neither Stanton, nor Grant, 
nor Tilden, nor Cleveland, nor Roosevelt, ever sat in Congress. 
Lincoln sat for two years only, and owed little of his subsequent 
eminence to his career there. 


1 As an illustration of the want of the dramatic element in Congress, I may 
mention that some of the parliamentary debating societies in the American colleges 
(colleges for women included) were recently taking for their model not either 
House of Congress but the British House of Commons, the students conducting 
their debates under the names of prominent members of that assembly. They 
said they did this because Congress has no Ministry and no leaders of the Op¬ 
position. 



chap, xxvi FRAME OF NATIONAL GOVERNMENT 305 


VIII. The independence of the judiciary, due to its holding 
for life, has been a conspicuous merit of the Federal system, 
as compared with the popular election and short terms of 
judges in most of the States. Yet even the Federal judiciary 
is not secure from the attacks of the two other powers, if com¬ 
bined. For the legislature may by statute increase the number 
of Federal justices, increase it to any extent, since the Con¬ 
stitution leaves the number undetermined and the President 
may appoint persons whom he knows to be actuated by a par¬ 
ticular political bias, perhaps even prepared to decide specific 
questions in a particular sense. Thus he and Congress to¬ 
gether may obtain such a judicial determination of any con¬ 
stitutional question as they join in desiring, even although 
that question has been heretofore differently decided by the 
Supreme court. The only safeguard is in the disapproval of 
the people. 

It is worth remarking that the points in which the American 
frame of national government has proved least successful are 
those which are most distinctly artificial, i.e. those which are 
not the natural outgrowth of old institutions and well-formed 
habits, but devices consciously introduced to attain specific 
ends . 1 The election of the President and Vice-President by 
electors appointed ad hoc is such a device. The functions of 
the judiciary do not belong to this category; they are the 
natural outgrowth of common law doctrines and of the previous 
history of the colonies and States; all that is novel in them, 
for it can hardly be called artificial, is the creation of Courts 
co-extensive with the sphere of the national government. 

All the main features of American government may be 
deduced from two principles. One is the sovereignty of the 

1 See Chapter IV. ante , and Note thereto in the Appendix. 

This may seem to be another way of saying that nature, i.e. historical devel¬ 
opment, is wiser than the wisest men. Yet it must be remembered that what 
we call historical development is really the result of a great many small expe¬ 
dients invented by men during many generations for curing the particular 
evils in their government which from time to time had to be cured. The moral 
therefore is that a succession of small improvements, each made conformably 
to existing conditions and habits, is more likely to succeed than a large scheme, 
made all at once in what may be called the spirit of conscious experiment. 
The Federal Constitution has been generally supposed in Europe to have been 
such a scheme, and its success has encouraged other countries to attempt simi¬ 
lar bold and large experiments. This is an error. The Constitution of the 
United States is almost as truly the matured result of long and gradual his¬ 
torical development as the English Constitution itself. 


X 





306 


THE NATIONAL GOVERNMENT 


PART I 


people, which expresses itself in the fact that the supreme law 
— the Constitution — is the direct utterance of their will, that 
they alone can amend it, that it prevails against every other 
law, that whatever powers it does not delegate are deemed to 
be reserved to it, that every power in the State draws its au¬ 
thority, whether directly, like the House of Representatives, 
or in the second degree, like the President and the Senate, or 
in the third degree, like the Federal judiciary, from the people, 
and is legally responsible to the people, and not to any one of 
the other powers. 

The second principle, itself a consequence of this first one, 
is the distrust of the various organs and agents of government. 
The States are carefully safeguarded against aggression by the 
central government. So are the individual citizens. Each 
organ of government, the executive, the legislature, the judi¬ 
ciary, is made a jealous observer and restrainer of the others. 
Since the people, being too numerous, cannot directly manage 
their affairs, but must commit them to agents, they have resolved 
to prevent abuses by trusting each agent as little as possible, 
and subjecting him to the oversight of other agents, who will 
harass and check him if he attempts to overstep his instruc¬ 
tions. 

Some one has said that the American Government and Con¬ 
stitution are based on the theology of Calvin and the philoso¬ 
phy of Hobbes. This at least is true, that there is a hearty 
Puritanism in the view of human nature which pervades the 
instrument of 1787. It is the work of men who believed in 
original sin, and were resolved to leave open for transgressors 
no door which they could possibly shut. 1 Compare this spirit 
with the enthusiastic optimism of the Frenchmen of 1789. It 
is not merely a difference of race temperaments; it is a differ¬ 
ence of fundamental ideas. 

With the spirit of Puritanism there is blent a double portion 
of the spirit of legalism. Not only is there no reliance on 
ethical forces to help the government to work : there is an 
elaborate machinery of law to preserve the equilibrium of each 
of its organs. The aim of the Constitution seems to be not so 
much to attain great common ends by securing a good govern¬ 
ment as to avert the evils which will flow, not merely from a 

1 “That power might be abused,” says Marshall in his Life of Washington. 
“was deemed a conclusive reason why it should not be conferred.” 



chap, xxvi FRAME OF NATIONAL GOVERNMENT 307 


bad government, but from any government strong enough tc 
threaten the pre-existing communities or the individual citizen. 

The spirit of 1776, as it speaks to us from the Declaration 
of Independence and the glowing periods of Patrick Henry, 
was largely a revolutionary spirit, revolutionary in its faith in 
abstract principles, revolutionary also in its determination to 
carry through a tremendous political change in respect of 
grievances which the calm judgment of history does not deem 
intolerable, and which might probably have been redressed by 
less trenchant methods. But the spirit of 1787 was an English 
spirit, and therefore a conservative spirit, tinged, no doubt, by 
the hatred to tyranny developed in the revolutionary struggle, 
tinged also, by the nascent dislike to inequality, but in the 
main an English spirit, which desired to walk in the old paths 
of precedent, which thought of government as means of main¬ 
taining order and securing to every one his rights, rather than 
as a great ideal power, capable of guiding and developing a 
nation’s life. And thus, though the Constitution of 1789 
represented a great advance on the still oligarchic system of 
contemporary England, it was yet, if we regard simply its 
legal provisions, the least democratic of democracies. Had 
the points which it left undetermined, as for instance the quali¬ 
fications of congressional electors, been dealt with in an aristo¬ 
cratic spirit, had the legislation of Congress and of the several 
States taken an aristocratic turn, it might have grown into an 
aristocratic system. The democratic character which it now 
possesses is largely the result of subsequent events, which 
have changed the conditions under which it had to work, and 
have delivered its development into the hands of that passion 
for equality which has become a powerful factor in the modern 
world everywhere. 

He who should desire to draw an indictment against the 
American scheme of government might make it a long one, and 
might for every count in it cite high American authority and 
adduce evidence from American history. Yet a European 
reader would greatly err were he to conclude that this scheme 
of government is a failure, or is, indeed, for the purposes of 
the country, inferior to the political system of any of the great 
nations of the Old World. 

All governments are faulty; and an equally minute analysis 
of the constitution of England, or France, or Germany would 



308 


THE NATIONAL GOVERNMENT 


PART I 


disclose mischiefs as serious, relatively to the problems with 
which those states have to dsal, as those we have noted in the 
American system. To any one familiar with the practical 
working of free governments it is a standing wonder that they 
work at all. The first impulse of mankind is to follow and 
obey; servitude rather than freedom is their natural state. 
With freedom, when it emerges among the more progressive 
races, there come dissension and faction; and it takes many 
centuries to form those habits of compromise, that love of 
order, and that respect for public opinion which make democ¬ 
racy tolerable. What keeps a free government going is the 
good sense and patriotism of the people, or of the guiding class, 
embodied in usages and traditions which it is hard to describe, 
but which find, in moments of difficulty, remedies for the in¬ 
evitable faults of the system. Now, this good sense and that 
power of subordinating sectional to national interests which 
we call patriotism, exist in higher measure in America than in 
any of the great states of Europe. And the United States, 
more than any other country, are governed by public opinion, 
that is to say, by the general sentiment of the mass of the 
nation, which all the organs of the national government and of 
the State governments look to and obey. 1 

A philosopher from Jupiter or Saturn who should examine 
the constitution of England or that of America would probably 
pronounce that such a body of complicated devices, full of 
opportunities for conflict and deadlock, could not work at all. 
Many of those who examined the American Constitution when 
it was launched did point to a multitude of difficulties, and 
confidently predicted its failure. Still more confidently did 
the European enemies of free government declare in the crisis 
of the War of Secession that “the republican bubble had burst.” 
Some of these censures were well grounded, though there were 
also defects which had escaped criticism, and were first dis¬ 
closed by experience. But the Constitution has lived on in spite 
of all defects, and seems stronger now than at any previous 
epoch. 

Every constitution, like every man, has “the defects of its 
good qualities.” If a nation desires perfect stability it must 
put up with a certain slowness and cumbrousness; it must face 

1 The nature of public opinion and the way in which it governs are discussed 
in Part IV. 





chap, xxvi FRAME OF NATIONAL GOVERNMENT 


309 


the possibility of a want of action where action is called for. 
If, on the other hand, it seeks to obtain executive speed and 
vigour by a complete concentration of power, it must run the 
risk that power will be abused and irrevocable steps too hastily 
taken. “The liberty-loving people of every country,” says 
Judge Cooley, 1 “take courage from American freedom, and 
find augury of better days for themselves from American 
prosperity. But America is not so much an example in her 
liberty as in the covenanted and enduring securities which are 
intended to prevent liberty degenerating into licence, and to 
establish a feeling of trust and repose under a beneficent gov¬ 
ernment, whose excellence, so obvious in its freedom, is still 
more conspicuous in its careful provision for permanence 
and stability.” Those faults on which I have laid stress, the 
waste of power by friction, the want of unity and vigour in 
the conduct of affairs by executive and legislature, are the 
price which the Americans pay for the autonomy of their 
States, and for the permanence of the equilibrium among the 
various branches of their government. They pay this price 
willingly, because these defects are far less dangerous to the 
body politic than they would be in a European country. Take 
for instance the shortcomings of Congress as a legislative 
authority. Every European country is surrounded by diffi¬ 
culties which legislation must deal with, and that promptly. 
But in America, where those relics of mediaeval privilege and 
injustice that still cumber most parts of the Old World either 
never existed, or were long ago abolished, where all the con¬ 
ditions of material prosperity exist in ample measure, and the 
development of material resources occupies men’s minds, where 
nearly all social reforms lie within the sphere of State action, 
— in America there has generally been less desire than in Europe 
for a perennial stream of federal legislation. People have been 
contented if things go on fairly well as they are. Political phi¬ 
losophers, or philanthropists, perceive not a few improvements 
which federal statutes might effect, but the mass of the nation 
has not greatly complained, and the wise see Congress so often 
on the point of committing mischievous errors that they do not 
deplore the barrenness of session after session. 

Every European state has to fear not only the rivalry but 
the aggression of its neighbours. Even Britain, so long safe 

1 Address to the South Carolina Bar Association, December 1886. 




310 


THE NATIONAL GOVERNMENT 


PART 1 


in her insular home, has lost some of her security by the growth 
of steam navies, and has in her Indian and colonial posses¬ 
sions given pledges to Fortune all over the globe. She, like 
the Powers of the European Continent, must maintain her 
system of government in full efficiency for war as well as for 
peace, and cannot afford to let her armaments decline, her 
finances become disordered, the vigour of her executive author¬ 
ity be impaired, sources of internal discord continue to prey 
upon her vitals. But America lives in a world of her own, 
ipsa suis pollens opibus, nihil indiga nostri. Safe from attack, 
safe even from menace, she hears from afar the warring cries 
of European races and faiths, as the gods of Epicurus listened 
to the murmurs of the unhappy earth spread out beneath 
their golden dwellings, 

“Sejuncta a rebus nostris semotaque longe.” 

Had Canada or Mexico grown to be a great power, had France 
not sold Louisiana, or had England, rooted on the American 
continent, become a military despotism, the United States 
could not indulge the easy optimism which makes them toler¬ 
ate the faults of their government. As it is, that which might 
prove to a European state a mortal disease is here nothing 
worse than a teasing ailment. Since the War of Secession 
ended, no serious danger has arisen either from within or from 
without to alarm transatlantic statesmen. Social convulsions 
from within, warlike assaults from without, seem now as 
unlikely to try the fabric of the American Constitution, as an 
earthquake to rend the walls of the Capitol. This is why the 
Americans submit, not merely patiently but hopefully, to the 
defects of their government. The vessel may not be any better 
built, or found, or rigged than are those which carry the for¬ 
tunes of the great nations of Europe. She is certainly not 
better navigated. But for the present at least — it may not 
always be so — she sails upon a summer sea. 

It must never be forgotten that the main object which the 
framers of the Constitution set before themselves has been 
achieved. When Sieyes was asked what he had done during 
the Reign of Terror, he answered, “I lived.” The Constitu¬ 
tion as a whole has stood and stands unshaken. The scales 
of power have continued to hang fairly even. The President 
has not corrupted and enslaved Congress : Congress has not 



chap, xxvi FRAME OF NATIONAL GOVERNMENT 311 


paralyzed and cowed the President. The legislative may have 
sometimes appeared to be gaining on the executive depart¬ 
ment ; but there are also times when the people support 
the President against the legislature, and when the legislature 
is obliged to recognize the fact. Were George Washington 
to return to earth, he might be as great and useful a President 
as he was more than a century ago. Neither the legislature nor 
the executive has for a moment threatened the liberties of 
the people. The States have not broken up the Union, arid 
the Union has not absorbed the States. No wonder that the 
Americans are proud of an instrument under which this great 
result has been attained, which has passed unscathed through 
the furnace of civil war, which has been found capable of em¬ 
bracing a body of commonwealths more than three times as 
numerous, and with thirty-fold the population of the original 
States, which has cultivated the political intelligence of the 
masses to a point reached in no other country, which has fos¬ 
tered and been found compatible with a larger measure of local 
self-government than has existed elsewhere. Nor is it the least 
of its merits to have made itself beloved. Objections may be 
taken to particular features, and these objections point, as most 
American thinkers are agreed, to practical improvements which 
would preserve the excellences and remove some of the incon¬ 
veniences. But reverence for the Constitution has become so 
potent a conservative influence, that no proposal of fundamental 
change seems likely to be entertained. And this reverence is 
itself one of the most wholesome and hopeful elements in the 
character of the American people. 



CHAPTER XXVII 


THE FEDERAL SYSTEM 

Having examined the several branches of the National gov¬ 
ernment and the manner in which they work together, we may 
now proceed to examine the American Commonwealth as a 
Federation of States. The present chapter is intended to state 
concisely the main features which distinguish the Federal 
system, and from which it derives its peculiar character. Three 
other chapters will describe its practical working, and sum¬ 
marize the criticisms that may be passed upon it. 

The contests in the Convention of 1787 over the framing of 
the Constitution, and in the country over its adoption, turned 
upon two points : the extent to which the several States should 
be recognized as independent and separate factors in the con¬ 
struction of the National government, and the quantity and 
nature of the powers which should be withdrawn from the 
States to be vested in that government. It has been well re¬ 
marked that “the first of these, the definition of the structural 
powers, gave more trouble at the time than the second, because 
the line of partition between the powers of the States and the 
Federal government had been already fixed by the whole expe¬ 
rience of the country.” But since 1791 there has been prac¬ 
tically no dispute as to the former point, and little as to the 
propriety of the provisions which define the latter. On the 
interpretation of these provisions there has, however, been 
endless debate, some deeming the Constitution to have taken 
more from the States, some less; while still warmer contro¬ 
versies have raged as to the matters which the instrument 
does not expressly deal with, and particularly whether the 
States retain their sovereignty, and with it the right of nullify¬ 
ing or refusing to be bound by certain acts of the national gov¬ 
ernment, and in the last resort of withdrawing from the Union. 
As these latter questions (nullification and secession) have now 
been settled by the Civil War, we may say that in the America 
of to-day there exists a general agreement — 

312 


CHAP. XXVII 


THE FEDERAL SYSTEM 


313 


That every State on entering the Union finally renounced its 
sovereignty, and is now for ever subject to the Federal authority 
as defined by the Constitution. 

That the functions of the States as factors of the national 
government are satisfactory, i.e. sufficiently secure its strength 
and the dignity of these communities. 

That the delimitation of powers between the national gov¬ 
ernment and the States, contained in the Constitution, is con¬ 
venient, and needs no fundamental alteration . 1 

The ground which we have to tread during the remainder of 
this chapter is therefore no longer controversial ground, but 
that of well-established law and practice. 

I. The distribution of powers between the National and the 
State governments is effected in two ways — Positively, by con¬ 
ferring certain powers on the National government; Negatively, 
by imposing certain restrictions on the States. It would have 
been superfluous to confer any powers on the States, because 
they retain all powers not actually taken from them. A lawyer 
may think that it was equally unnecessary and, so to speak, 
inartistic, to lay any prohibitions on the National government, 
because it could ex hypothesi exercise no powers not expressly 
granted. However, the anxiety of the States to fetter the 
master they were giving themselves caused the introduction 
of provisions qualifying the grant of express powers, and inter¬ 
dicting the National government from various kinds of action 
on which it might otherwise have been tempted to enter . 2 
The matter is further complicated by the fact that the grant 
of power to the National government is not in all cases an 
exclusive grant: i.e. there are matters which both, or either, 

1 The view that the power of Congress to legislate might usefully be so 
extended, by constitutional amendments, as to include such a subject as 
marriage and divorce, or to give it greater control over the agencies of trans¬ 
portation, is of course compatible with an acquiescence in the general scheme 
of delimitation of powers. 

2 Judge Cooley observes to me, “The prohibitions imposed by the Federal 
Constitution on the exercise of power by the general government were not, for 
the most part, to prevent its encroaching on the powers left with the States, 
but to preclude tyrannical exercise of powers which were unquestionably given 
to the Federal government. Thus Congress was forbidden to pass any bill of 
attainder ; this was to prevent its dealing with Federal offences by legislative 
conviction and sentence. It was forbidden to pass ex post facto laws, and this 
undoubtedly is a limitation upon power granted ; for with the same complete 
power in respect to offences against the general government which a sover-* 
eignty possesses, it might have passed such laws if not prohibited. 



314 


THE NATIONAL GOVERNMENT 


PART I 


the States and the National government may deal with. “The 
mere grant of a power to Congress does not of itself, in most 
cases, imply a prohibition upon the States to exercise the like 
power. ... It is not the mere existence of the National power, 
but its exercise, which is incompatible with the exercise of 
the same power by the States.” 1 Thus we may diis&nguish 
the following classes of governmental powers' — 

Powers vested in the National governnfent alone 1 . 

Powers vested in the States alone. 

Powers exercisable by either the National government or the 
States. 

Powers forbidden to the National government. 

Powers forbidden to the State governments. 

It might be thought that the two latter classes are super¬ 
fluous, because whatever is forbidden to the^fStibrfal govern¬ 
ment must be permitted to the States, and conversely, whatever 
is forbidden to the States must be permitted to the National 
government. But this is not so. For instance, Congress can 
grant no title of nobility (Art. i. § 9). But neither can a State 
do so (Art. i. § 10). The National government cannot take 
private property for public use without just<J (Jompensation 
(Amendment v.). Apparently neither can any State do so 
(Amendment xiv. as interpreted in several cases). So no 
State can pass any law impairing the obligation of a contract 
(Art. i. § 10). But the National government, although not 
subject to a similar direct prohibition, has received no general 
power to legislate as regards ordinary contracts, and might 
therefore in some cases find itself equally unable to pass a law 
which a State legislature, though for a different reason, could 
not pass. 2 So no State can pass any ex jpost facto law. Neither 
can Congress. 

What the Constitution has done is not to cut in half the to¬ 
tality of governmental functions and powers, giving part to the 
national government and leaving all the rest to the States, but 
to divide up this totality of authority into a number of parts 
which do not exhaust the whole, but leave a residuum of powers 
neither granted to the Union nor continued to the States but 
reserved to the people, who, however, can put them in 

1 Cooley, Principles, p. 35 ; cf. Sturges v. Crowninshield, 4 Wheat. 122. 

2 Of course Congress can legislate regarding some contracts, and can impair 
their obligation. It has power to regulate commerce, it can pass bankrupt 
laws, it can make paper money legal tender. 



CHAP. XXVII 


THE FEDERAL SYSTEM 


315 


force only by the difficult process of amending the Constitu¬ 
tion. In other words, there are things in America which there 
exists no organized and permanent authority capable of legally 
doing, not a State, because it is expressly forbidden, not the 
national government, because it either has not received the 
competence or has been expressly forbidden. Suppose, for in¬ 
stance, that there should arise a wish to pass for California 
such a measure as the Irish Land Act passed by the British 
Parliament in 1881. Neither the State legislature of Califor¬ 
nia, nor the people of California assembled in a constitutional 
convention, could pass such a measure, because it would violate 
the obligation of contracts, and thereby transgress Art. i. § 10 
of the Federal Constitution. Whether the Federal Congress 
could pass such a measure is at least extremely doubtful, be¬ 
cause the Constitution, though it has imposed no prohibition 
such as that which restricts a State, does not seem to have con¬ 
ferred on Congress the right of legislating on such a matter at 
all. 1 If, therefore, an absolute and overwhelming necessity for 
the enactment of such a measure should arise, the safer if not 
the only course would be to amend the Federal Constitution, 
either by striking out the prohibition on the States or by con¬ 
ferring the requisite power on Congress, a process which would 
probably occupy more than a year, and which requires the con¬ 
currence of two-thirds of both Houses of Congress and of three- 
fourths of the States. 

II. The powers vested in the National government alone are 
such as relate to the conduct of the foreign relations of the 
country and to such common national purposes as the army and 
navy, interstate commerce, currency, weights and measures, and 
the post-office, with provisions for the management of the 
machinery, legislative, executive, and judicial, charged with 
these purposes. 2 

The powers which remain vested in the States alone are all 
the other ordinary powers of internal government, such as 
legislation on private law, civil and criminal, the maintenance 

1 It may of course be suggested that in case of urgent public necessity, such 
as the existence of war or insurrection, Congress might extinguish debts either 
generally or in a particular district. No such legislative power seems, how¬ 
ever, to have been exerted or declared by the courts to exist, unless the prin¬ 
ciples of the last Legal Tender decision can he thought to reach so far. 

2 See Art. i. § 8, Art. ii. § 2, Art. hi. § 2, Art. iv. §§ 3 and 4; Amendments 
xiii. xiv. xv. of the Constitution. 



316 


THE NATIONAL GOVERNMENT 


PART I 


of law and order, the creation of local institutions, the pro¬ 
vision for education and the relief of the poor, together with 
taxation for the above purposes. 

III. The powers which are exercisable concurrently by the 
National government and by the States are — 

Powers of legislation on some specified subjects, such as 
bankruptcy and certain commercial matters ( e.g . pilot laws and 
harbour regulations), but so that State legislation shall take 
effect only in the absence of Federal legislation. 

Powers of taxation, direct or indirect, but so that neither 
Congress nor a State shall tax exports from any State, and 
so that neither any State shall, except with the consent of 
Congress, tax any corporation or other agency created for 
Federal purposes or any act done under Federal authority, 
nor the National government tax any State or its agencies or 
property. 1 

Judicial powers in certain classes of cases where Congress 
might have legislated, but has not, or where a party to a suit 
has a choice to proceed either in a Federal or a State court. 

Powers of determining matters relating to the election of 
representatives and senators (but if Congress determines, the 
State law gives way). 

IV. The prohibitions imposed on the National government 
are set forth in Art. i. § 9, and in the first ten amendments. 
The most important are — 

Writ of habeas corpus may not be suspended, nor bill of 
attainder or ex post facto law passed. 2 

No commercial preference shall be given to one State over 
another. 

No title of nobility shall be granted. 

No law shall be passed establishing or prohibiting any reli¬ 
gion, or abridging the freedom of speech or of the press, or of 
public meeting or of bearing arms. 

No religious test shall be required as a qualification for any 
office under the United States. 

No person shall be tried for a capital or otherwise infamous 
crime unless on the presentment of a grand jury, or be sub- 

1 Federal direct taxes must be imposed according to the population of the 
States, and indirect taxes be made uniform throughout the United States. But 
see now Amendment XVI to the Constitution. 

2 Similar limitations occur in some recent European Constitutions. 

The term ex post facto law is deemed to refer to criminal laws only. 



CHAP. XXVII 


THE FEDERAL SYSTEM 


317 


jected to a second trial for the same offence, or be compelled 
to be a witness against himself, or be tried otherwise than by 
a jury of his State and district. 

No common law action shall be decided except by a jury 
where the value in dispute exceeds $20, and no fact deter¬ 
mined by a jury shall be re-examined otherwise than by the 
rules of the common law. 1 

V. The prohibitions imposed on the States are contained 
in Art. i. § 10, and in the three latest amendments. They are 
intended to secure the National government against attempts 
by the States to trespass on its domain, and to protect individ¬ 
uals against oppressive legislation. 

No State shall — Make any treaty or alliance : coin money : 
make anything but gold and silver coin a legal tender : pass 
any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts : grant any titles of nobility. 

No State shall without the consent of Congress — Lay 
duties on exports or imports (the produce of such, if laid, going 
to the national treasury) : keep troops or ships of war in peace 
time : enter into an agreement with another State or with 
any foreign power : engage in war, unless actually invaded or in 
imminent danger. 

Every State must — Give credit to the records and judicial 
proceedings of every other State : extend the privileges and 
immunities of citizens to the citizens of other States: deliver 
up fugitives from justice to the State entitled to claim them. 

No State shall have any but a republican form of govern¬ 
ment. 

No State shall — Maintain slavery: abridge the privileges 
of any citizen of the United States, or deny to him the right 
of voting, in respect of race, colour, or previous servitude: de¬ 
prive any person of life, liberty, or property without due process 
of law : deny to any person the equal protection of the laws. 

Note that this list contains no prohibition to a State to do 
any of the following things : — Establish a particular form of 
religion : endow a particular form of religion, or educational or 
charitable establishments connected therewith: abolish trial 
by jury in criminal or civil cases : suppress the freedom of 
speaking, writing, and meeting (provided that this be done 

1 Chiefly intended to prevent the methods of courts of equity from being 
applied in the Federal courts as against the findings of a jury. 



318 


THE NATIONAL GOVERNMENT 


PART 1 


equally as between different classes of citizens, and provided 
also that it be not done to such an extent as to amount to a 
deprivation of liberty without due process of law) : limit the 
electoral franchise to any extent: extend the electoral franchise 
to women, minors, aliens. 

These omissions are significant. They show that the framers 
of the Constitution had no wish to produce uniformity among 
the States in government or institutions, and little care to pro¬ 
tect the citizens against abuses of State power. 1 They were 
content to trust for this to the provisions of the State consti¬ 
tutions. Their chief aim was to secure the National govern¬ 
ment against encroachments on the part of the States, and to 
prevent causes of quarrel both between the central and State 
authorities and between the several States. The result has, 
on the whole, justified their action. So far from abusing their 
power of making themselves unlike one another, the States 
have tended to be too uniform, and had, till near the end of 
last century, made comparatively few experimental changes in 
their institutions. 

VI. The' powers vested in each State are all of them original 
and inherent powers, which belonged to the State before it 
entered the Union. Hence they are prima facie unlimited, and 
if a question arises as to any particular power, it is presumed 
to be enjoyed by the State, unless it can be shown to have been 
taken away by the Federal Constitution; or, in other words, a 
State is not deemed to be subject to any restriction which the 
Constitution has not distinctly imposed. 

The powers granted to the National government are dele¬ 
gated powers, enumerated in and defined by the instrument 
which has created the Union. Hence the rule that when a 
question arises whether the National government possesses a 
particular power, proof must be given that the power was posi- ~ 
tively granted. If not granted, it is not possessed, because 
the Union is an artificial creation, whose government can have 
nothing but what the people have by the Constitution conferred. 
The presumption is therefore against the National govern¬ 
ment in such a case, just as it is for the State in a like case. 2 

1 The fourteenth and fifteenth amendments are in this respect a novelty. 
The only restrictions of this kind to be found in the instrument of 1789 are 
those relating to contracts and ex post facto laws. 

2 Congress must not attempt to interfere with the so-called “ police power ” 
of the States within their own limits. So when a statute of Congress had 




CHAP. XXVII 


THE FEDERAL SYSTEM 


319 


VII. The authority of the National government over the 
citizens of every State is direct and immediate, not exerted 
through the State organization, and not requiring the co-opera¬ 
tion of the State government. For most purposes the National 
government ignores the States; and it treats the citizens of 
different States as being simply its own citizens, equally bound 
by its laws. The Federal courts, revenue officers, and post- 
office draw no help from any State officials, but depend directly 
on Washington. Hence, too, of course, there is no local self- 
government in Federal matters. No Federal official is elected 
by the people of any local area. Local government is purely 
a State affair. 

On the other hand, the State in no wise depends on the 
National government for its organization or its effective work¬ 
ing. It is the creation of its own inhabitants. They have 
given it its constitution. They administer its government. It 
goes on its own way, touching the National government at but 
few points. That the two should touch at the fewest possible 
points was the intent of those who framed the Federal Consti¬ 
tution, for they saw that the less contact, the less danger of 
collision. Their aim was to keep the two mechanisms as dis¬ 
tinct and independent of each other as was compatible with 
the still higher need of subordinating, for national purposes, 
the State to the Central government. 

VIII. It is a further consequence of this principle that the 
National government has but little to do with the States as 
States. Its relations are with their citizens, who are also its 
citizens, rather than with them as ruling commonwealths. In 
the following points, however, the Constitution does require 
certain services of the States : — 

It requires each State government to direct the choice of, 
and accredit to the seat of the National government, two 
senators, and so many representatives as the State is entitled 
to send. 

It requires similarly that presidential electors be chosen, 
meet, and vote in the States, and that their votes be trans¬ 
mitted to the national capital. 

made it punishable to sell certain illuminating fluids inflammable at less than 
a certain specified temperature, it was held that this statute could not operate 
within a State, but only in the District of Columbia and the Territories, and a 
person convicted under it in Detroit was discharged (United States v. De Witt, 
9 Wall. 41). 



320 


THE NATIONAL GOVERNMENT 


PART I 


It requires each State to organize and arm its militia, which, 
when duly summoned for active service, are placed under the 
command of the President. 

It requires each State to maintain a republican form of 
government. (Conversely, a State may require the National 
government to protect it against invasion or domestic violence.) 

Note in particular that the National government does not 
as in some other federations — 

Call upon the States, as commonwealths, to contribute funds 
to its support: 

Issue (save in so far as may be needed in order to secure a 
republican form of government) administrative orders to the 
States, directing their authorities to carry out its laws or com¬ 
mands : 

Require the States to submit their laws to it, and veto such 
as it disapproves. 

The first two things it is not necessary for the National 
government to do, because it levies its taxes directly by its 
own collectors, and enforces its laws, commands, and judicial 
decrees by the hands of its own servants. The last can be 
dispensed with because the State laws are ipso jure invalid, if 
they conflict with the Constitution or any treaty or law duly 
made under it (Art. vi. § 2), while if they do not so conflict 
they are valid, any act of the National government notwith¬ 
standing. 

Neither does the National government allow its structure to 
be dependent on the action of the States. “To make it impos¬ 
sible for a State or group of States to jeopard by inaction or 
hostile action the existence of the central government,” was 
a prime object with the men of 1787, and has greatly contributed 
to the solidity of the fabric they reared. The de facto secession 
of eleven States in 1860-61 interfered with the regular legal 
conduct neither of the presidential election of 1864 nor of the 
congressional elections from 1861 to 1865. Those States were 
not represented in Congress; but Congress itself went on 
diminished in numbers yet with its full legal powers, as the 
British Parliament would go on though all the peers and repre¬ 
sentatives from Scotland might be absent. 

IX. A State is, within its proper sphere, just as legally 
supreme, just as well entitled to give effect to its own will, as 
is the National government within its sphere ; and for the same 



CHAP. XXVII 


THE FEDERAL SYSTEM 


321 


reason. All authority flows from the people. The people 
have given part of their supreme authority to the National, 
part to the State governments. Both hold by a like title, and 
therefore the National government, although superior wherever 
there is a concurrence of powers, has no more right to tres¬ 
pass upon the domain of a State than a State has upon the domain 
of Federal action. That the course which a State is following 
is pernicious, that its motives are bad and its sentiments dis¬ 
loyal to the Union, makes no difference until or unless it infringes 
on the sphere of Federal authority. It may be thought that 
however distinctly this may have been laid down as a matter 
of theory, in practice the State will not obtain the same justice 
as the National government, because the court which decides 
points of law in dispute between the two is in the last resort a 
Federal court, and therefore biassed in favour of the Federal 
government. In fact, however, little or no unfairness has arisen 
from this cause. 1 The Supreme court may, as happened, for 
twenty years before the War of Secession, be chiefly composed of 
States’ Rights men. In any case the court cannot stray far from 
the path which previous decisions have marked out. 

X. There are several remarkable omissions in the constitu¬ 
tion of the American federation. 

One is that there is no grant of power to the National gov¬ 
ernment to coerce a recalcitrant or rebellious State. Another 
is that nothing is said as to the right of secession. Any one 
can understand why this right should not have been granted. 
But neither is it mentioned to be negatived. 

The Constitution was an instrument of compromises; and 
these were questions which it would have been unwise to raise. 

There is no abstract or theoretic declaration regarding the 
nature of the federation and its government, nothing as to the 
ultimate supremacy of the central authority outside the partic¬ 
ular sphere allotted to it, nothing as to the so-called sovereign 
rights of the States. As if with a prescience of the dangers to 
follow, the wise men of 1787 resolved to give no opening for 

1 “Whatever fluctuations may be seen in the history of public opinion during 
the period of our national existence, we think it will be found that the Supreme 
court, so far as its functions required, has always held with a steady and even 
hand the balance between State and Federal power, and we trust that such may 
continue to be the history of its relation to that subject so long as it shall have 
duties to perform which demand of it a construction of the Constitution. 
Judgment of the Supreme court in The Slaughter House Cases, 16 Wall. 82. 



322 


THE NATIONAL GOVERNMENT 


PART I 


abstract inquiry and metaphysical dialectic. 1 But in vain. 
The human mind is not to be so restrained. If the New Tes¬ 
tament had consisted of no other writings than the Gospel of 
St. Matthew and the Epistle of St. James, there would have 
been scarcely the less a crop of speculative theology. The 
drily legal and practical character of the Constitution did not 
prevent the growth of a mass of subtle and, so to speak, scho¬ 
lastic metaphysics regarding the nature of the government it 
created. The inextricable knots which American lawyers and 
publicists went on tying, down till 1861, were cut by the sword 
of the North in the Civil War, and need concern us no longer. 
It is now admitted that the Union is not a mere compact be¬ 
tween commonwealths, dissoluble at pleasure, but an instru¬ 
ment of perpetual efficacy, 2 emanating from the whole people, 
and alterable by them only in the manner which its own terms 
prescribe. It is “an indestructible Union of indestructible 
States.” 

It follows from the recognition of the indestructibility of the 
Union that there must somewhere exist a force capable of pre¬ 
serving it. The National government is now admitted to be 
such a force. It can exercise all powers essential to preserve 
and protect its own existence and that of the States, and the 


1 The Declaration of Independence had already given them plenty of 
abstract propositions about human rights and human governments, so there 
was the less temptation to wander from the path of definite practical provisions. 

2 This view received judicial sanction in the famous case of Texas v. White 
(7 Wall. 700), decided by the Supreme court after the war. It is there said by 
Chief-Justice Chase, “ The Union of the States never was a purely artificial 
and arbitrary relation. ... It received definite form and character and sanc¬ 
tion by the Articles of Confederation. By these the Union was solemnly de¬ 
clared to be perpetual.’ And when these articles were found to be inadequate 
to the exigencies of the country, the Constitution was ordained ‘ to form a more 
perfect Union. It is difficult to convey the idea of indissoluble unity more 
clearly than by these words. What can be indissoluble if a perpetual union, 
made more perfect, is not ? But the perpetuity and indissolubility of the Union 
by no means implies the loss of distinct and individual existence, or of the 
right of self-government by the States. ... It may be not unreasonably said 
that the preservation of the States and the maintenance of their governments 
are as much within the design and care of the Constitution as the preserva¬ 
tion of the Union and the maintenance of the national government. The 
Constitution, in all its provisions, looks to an indestructible Union composed 
of indestructible States. When, therefore, Texas became one of the United 
States she entered into an indissoluble relation. . . . There was no place for 
reconsideration or revocation except through revolution or through consent of 
the States. Considered therefore as transactions under the Constitution, the 
ordinance of secession adopted by the Convention, and ratified by a majority 
of the citizens of Texas, was absolutely null and utterly without operation in 



CHAP. XXVII 


THE FEDERAL SYSTEM 


323 


constitutional relation of the States to itself, and to one 
another. 

“May it not,” some one will ask, “abuse these powers, abuse 
them so as to extinguish the States themselves, and turn the 
federation into a unified government? What is there but the 
Federal judiciary to prevent this catastrophe? and the Federal 
judiciary has only moral and not also physical force at its com¬ 
mand.” 

No doubt it may, but not until public opinion supports it in 
so doing — that is to say, not until the mass of the nation which 
now maintains, because it values, the Federal system, is pos¬ 
sessed by a desire to overthrow that system. Such a desire 
may express itself in proper legal form by carrying amend¬ 
ments to the Constitution which will entirely change the 
nature of the government. Or if the minority be numerous 
enough to prevent the passing of such amendments, and if the 
desire of the majority be sufficiently vehement, the majority 
which sways the National government may disregard legal 
sanctions and effect its object by a revolution. In either event 
— and both are improbable — the change which will have passed 
upon the sentiments of the American people will be a sign that 
Federalism has done its work, and that the time has arrived for 
new forms of political life. 

law. The obligations of the State as a member of the Union, and of every 
citizen of the State as a citizen of the United States, remained perfect and 
unimpaired.'’ The State did not cease to be a State, nor her citizens to be citi¬ 
zens of the Union. See also the cases of White v. Hart (13 Wall. 646) and 
Keith v. Clark (97 U. S. 451). 

As respects the argument that the Union established by the Constitution of 
1789 must be perpetual, because it is declared to have been designed to make a 
previous perpetual Union more perfect, it may be remarked, as matter of his¬ 
tory, that this previous Union (that resting on the Articles of Confederation) 
had not proved perpetual, but was in fact put an end to by the acceptance in 
1788 of the new Constitution by the nine States who first ratified that instru¬ 
ment. After that ratification the Confederation was dead, and the States of 
North Carolina and Rhode Island, which for some months refused to come into 
the new Union, were clearly out of the old one, and, de jure if not de facto , stood 
alone in the world. May it not then be said that those who destroyed a Union 
purporting to be perpetual were thereafter estopped from holding it to have been 
perpetual, and from founding on the word “perpetual” an argument against 
those who tried to upset the new Union in 1861, as the old one had been upset 
in 1788? The answer to this way of putting the point seems to be to admit 
that the proceedings of 1788 were in fact revolutionary. In ratifying their new 
Constitution in that year, the nine States broke through and flung away their 
previous compact which purported to have been made for ever. But they i 
so for the sake of forming a better and more enduring compact, and their extra- 
legal action was amply justified by the necessities of the case. 



CHAPTER XXVIII 


WORKING RELATIONS OF THE NATIONAL AND THE STATE 
GOVERNMENTS 

The characteristic feature and special interest of the American 
Union is that it shows us two governments covering the same 
ground, yet distinct and separate in their action. It is like 
a great factory wherein two sets of machinery are at work, their 
revolving wheels apparently intermixed, their bands crossing 
one another, yet each set doing its own work without touching 
or hampering the other. To keep the National government 
and the State governments each in the allotted sphere, preventing 
collision and friction between them, was the primary aim of those 
who formed the Constitution, a task the more needful and the 
more delicate because the States had been until then almost 
independent and therefore jealous of their privileges, and because, 
if friction should arise, the National government could not 
remove it by correcting defects in the machinery. For the 
National government, being itself the creature of the Consti¬ 
tution, was not permitted to amend the Constitution, but could 
only refer it back for amendment to the people of the States 
or to their legislatures. Hence the men of 1787, feeling the car¬ 
dinal importance of anticipating and avoiding occasions of col¬ 
lision, sought to accomplish their object by the concurrent 
application of two devices. One was to restrict the functions 
of the National government to the irreducible minimum of 
functions absolutely needed for the national welfare, so that 
everything else should be left to the States. The other was to 
give that government, so far as those functions extended, a direct 
and immediate relation to the citizens, so that it should act on 
them not through the States but of its own authority and by its 
own officers. These are fundamental principles whose sound¬ 
ness experience has approved, and which will deserve to be con- 

324 


chap, xxviii NATIONAL AND STATE GOVERNMENTS 325 


sidered by those who in time to come may have in other countries 
to frame federal or quasi-federal constitutions. They were 
studied, and to a large extent, though in no slavish spirit, adopted 
by the founders of the present constitution of the Swiss Con¬ 
federation, a constitution whose success bears further witness 
to the soundness of the American doctrines. 

The working relations of the National government to the 
States may be considered under two heads, viz. its relations 
to the States as communities, and its relations to the citizens 
of the States as individuals, they being also citizens of the Union. 

The National government touches the States as corporate 
commonwealths in three points. One is their function in help¬ 
ing to form the National government; another is the control 
exercised over them by the Federal Constitution through the 
Federal courts; the third is the control exercised over them by the 
Federal Legislature and Executive in the discharge of the govern¬ 
ing functions which these latter authorities possess. 

I. The States serve to form the National government by 
choosing presidential electors, by choosing senators, and by 
fixing the franchise which qualifies citizens to vote for mem¬ 
bers of the House of Representatives . 1 No difficulty has ever 
arisen (except during the Civil War) from any unwillingness 
of the States to discharge these duties, for each State is eager 
to exercise as much influence as it can on the national execu¬ 
tive and Congress. But note how much latitude has been left 
to the States. A State may appoint its presidential electors in 
any way it pleases. All States now do appoint them by popu¬ 
lar vote. But during the first thirty years of the Union many 
States left the choice of electors to their respective legislatures. 
So a State may, by its power of prescribing the franchise 
for its State elections, prescribe whatever franchise it pleases 
for the election of its members of the Federal House of Repre¬ 
sentatives, and may thus admit persons who would in other 
States be excluded from the suffrage, or exclude persons who 
would in other States be admitted. For instance, at least nine 
States allow aliens (i.e. foreigners not yet naturalized) to vote ; 
and nine 2 States admit women to vote at all State elections, 
thereby admitting them to vote also at congressional and presi- 

1 Congress may regulate by statute the times, places, and manner of holding 
elections for representatives, and has done so to some extent. 

2 A tenth State, Illinois, women vote in local and presidential elections. 



326 


THE NATIONAL GOVERNMENT 


PART I 


dential elections . 1 2 The only restriction imposed on Staxe 
discretion in this respect is that of the fifteenth amendment, 
which forbids any person to be deprived of suffrage, on “ account 
of race, colour, or previous condition of servitude . 57 2 

II. The Federal Constitution deprives the States of certain 
powers they would otherwise enjoy. Some of these, such as 
that of making treaties, are obviously unpermissible, and such 
as the State need not regret . 3 Others, however, seriously re¬ 
strain their daily action. They are liable to be sued in the 
Federal courts by another State or by a foreign power . 4 They 
cannot, except with the consent of Congress, tax exports or 
imports, or in any case pass a law impairing the obligation of a 
contract. They must surrender fugitives from the justice of 
any other State. Whether they have transgressed any of these 
restrictions is a question for the courts of law, and, if not in 
the first instance, yet always in the last resort a question for the 
Federal Supreme court. If it is decided that they have trans¬ 
gressed, their act, be it legislative or executive, is null and void . 5 

The President as national executive, and Congress as national 
legislature, have also received from the Constitution the right 
of interfering in certain specified matters with the govern- 

1 So in some States tribal Indians are permitted to vote. It is odd that the 
votes of persons who are not citizens of the United States might, in a State 
where parties are nearly equal, turn the choice of presidential electors in that 
State, and thereby perhaps turn the presidential election in the Union. 

2 The Constitutions of four States confine the suffrage to whites ; and Idaho 
excludes Mongolians not born in the United States ; but all such provisions are 
overridden by the fifteenth constitutional amendment. 

3 As the States had not been accustomed to act as sovereign commonwealths 
in international affairs, they yielded this right to the National government 
without demur ; whereas Swiss history shows the larger cantons to have been 
unwilling to drop the practice of sending their own envoys to foreign powers 
and making bargains on their own behalf. 

4 No foreign State would however appear to have ever brought such a suit. 

5 Mr. Justice Miller observes ( Centennial Address at Philadelphia) that “ at 
no time since the formation of the Union has there been a period when there 
were not to be found on the statute books of some of the States acts passed in 
violation of the provisions of the Constitution regarding commerce, acts im¬ 
posing taxes and other burdens upon the free interchange of commodities, 
discriminating against the productions of other States, and attempting to estab¬ 
lish regulations of commerce, which the Constitution says shall only be done by 
Congress.” All such acts are of course held invalid by the courts when ques¬ 
tioned before them. 

It has been held that a State cannot forbid a common carrier to bring into 
its jurisdiction intoxicating liquors from another State ( Bowman v. C. & N. W. 
Rly. 125 U. S., p. 465) ; cf. Leisy v. Hardin, 135 U. S., p. 100; Minnesota v. 
Barber, 136 U. S., p. 313. And see also In re Rahrer, 140 U. S., p. 564. 



chap, xxviii NATIONAL AND STATE GOVERNMENTS 327 


ments of the States. Congress of course does this by way of 
legislation, and when an Act of Congress, made within the 
powers conferred by the Constitution, conflicts with a State 
statute, the former prevails against the latter. It prevails by 
making the latter null and void, so that if a State statute has 
been duly passed upon a matter not forbidden to a State by 
the Constitution, and subsequently Congress passes an act on 
the same matter, being one whereon Congress has received the 
right to legislate, the State statute, which was previously 
valid, now becomes invalid to the extent to which it conflicts 
with the Act of Congress. For instance, Congress has power 
to establish a uniform law of bankruptcy over the whole Union. 
Formerly, in the exercise of this power, it passed bankruptcy 
laws. When these were repealed, the subject was left to the 
State laws ; 1 and still later, in 1898, Congress again legislated 
on the subject, depriving these State laws of their force . 2 
If the law passed by Congress were again repealed, they 
would again spring into life. The field of this so-called con¬ 
current legislation is large, for Congress has not yet exercised 
all the powers vested in it of superseding State action. 

It was remarked in the last chapter that in determining the 
powers of Congress on the one hand and of a State government 
on the other, opposite methods have to be followed. The pre¬ 
sumption is always in favour of the State; and in order to 
show that it cannot legislate on a subject, there must be pointed 
out within the four corners of the Constitution some express 
prohibition of the right which it prima facie possesses or some 
implied prohibition arising from the fact that legislation by 
it would conflict with legitimate federal authority . 3 On the 
other hand, the presumption is always against Congress, and 
to show that it can legislate, some positive grant of power 
to Congress in the Constitution must be pointed out . 4 When 

1 See the interesting case of Sturges v. Crowninshield, 4 Wheat. 196. 

2 They lost their force altogether, because the power of Congress being to 

establish a “ uniform ” law, the continued existence of statutes differing in the 
different States would prevent the law of bankruptcy from being uniform over 
the Union. # . 

3 Otherwise in the Federal Constitution of Canada. See m the Appendix 
Note (B) to Chapter XXX. 

4 The grant need not, however, be express, for it has frequently been held 
that a power incidental or instrumental to a power expressly given may be con¬ 
ferred upon Congress by necessary implication. See M'Culloch v. Maryland , 
4 Wheat, p. 316, and post , Chapter XXXXXX. 



328 


THE NATIONAL GOVERNMENT 


PART I 


the grant is shown, then the Act of Congress has, so long as 
it remains on the statute book, all the force of the Constitu¬ 
tion itself. In some instances the grant of power to Con¬ 
gress to legislate is auxiliary to a prohibition imposed on the 
States. This is notably the case as regards the amendments 
to the Constitution, passed for the protection of the lately 
liberated negroes. They interdict the States from either 
recognizing slavery, or discriminating in any way against any 
class of citizens; they go even beyond citizens in their care, 
and declare that “no State shall deny to any person within its 
jurisdiction the equal protection of the laws.” Now, by each 
of these amendments, Congress is also empowered, which 
practically means enjoined, to “ enforce by appropriate legis¬ 
lation” the prohibitions laid upon the States. Congress has 
done so, but some of its efforts have been held to go beyond 
the directions of the amendments, and to be therefore void. 1 
The grant of power has not covered them. 

Where the President interferes with a State, he does so either 
under his duty to give effect to the legislation of Congress, or 
under the discretionary executive functions which the Consti¬ 
tution has entrusted to him. So if any State were to depart 
from a republican form of government, it would be his duty 
to bring the fact to the notice of Congress in order that the 
guarantee of that form contained in the Constitution might 
be made effective. If an insurrection broke out against the 
authority of the Union, he would (as in 1861) send Federal 
troops to suppress it. If there should be rival State govern¬ 
ments, each claiming to be legitimate, the President might, 
especially if Congress were not sitting, recognize and support 
the one which he deemed regular and constitutional. 2 

Are these, it may be asked, the only cases in which Federal 
authority can interfere within the limits of a State to maintain 
order? Are law and order, i.e. the punishment of crimes and 
the enforcement of civil rights, left entirely to State authori¬ 
ties ? The answer is : — 

1 See the Appendix to the last edition of Story’s Commentaries , and Desty’s 
Constitution o) the United States Annotated. 

2 In 1874-75 a contest having arisen in Louisiana between two governments 
each claiming to be the legal government of the State, Federal military aid 
was supplied to one of them by the President, and his action was afterwards 
approved by Congress. It has been doubted, however, whether the case could 
properly be deemed one of “domestic violence ” within the meaning of Art. iv. 
§ 4 of the Constitution. 



xxyiii NATIONAL AND STATE GOVERNMENTS 329 


Offences against Federal statutes are justiciable in Federal 
courts, and punishable under Federal authority. There is no 
Federal common law of crimes. 

Resistance offered to the enforcement of a Federal statute 
may be suppressed by Federal authority. 

Attacks on the property of the Federal government may be 
repelled, and disturbances thence arising may be quelled by 
Federal authority. 

The judgments pronounced in civil causes by Federal courts 
are executed by the officers of these courts. 

All other offences and disorders whatsoever are left to be 
dealt with by the duly constituted authorities of the State, 
who are, however, entitled in one case to summon the power of 
the Union to their aid. 

This case is that of the breaking out in a State of serious 
disturbances. The President is bound on the application of 
the State legislature or executive to quell such disturbances 
by the armed forces of the Union, or by directing the militia 
of another State to enter. Thus in 1794 Washington sup¬ 
pressed the so-called Whisky Insurrection in Pennsylvania 
by the militia of Pennsylvania, New Jersey, Virginia, and 
Maryland. 1 President Grant was obliged to use military force 
during the troubles which disturbed several of the Southern 
States after the Civil War; as was President Hayes, during 
the tumults in Pennsylvania caused by the great railway strikes 
of 1877. There have, however, been cases, such as the Dorr 
rebellion in Rhode Island in 1842, 2 in which a State has itself 
suppressed an insurrection against its legitimate government. 
It is the duty of a State to do so if it can, and to seek Federal 
aid only in extreme cases, when resistance is formidable. The 
most remarkable recent instance of Federal interposition oc¬ 
curred in 1894 when, during a railway strike in Illinois, mobs had 
stopped the passage of trains carrying the U. S. mails. Presi¬ 
dent Cleveland, on the ground that Federal property must be 
protected and the constitutional duty of carrying the mails 


1 This was the first assertion by arms of the supreme authority of the Union, 
and produced an enormous effect upon opinion. 

2 President Tyler ordered the militia of Connecticut and Massachusetts to 
be prepared (in case a requisition came from the R. I. executive) to guard the 
frontier of Rhode Island against insurgents attempting to enter, and himself 
took steps for sending in (in case of need) U. S. regular troops, but the Rhode 
Island militia proved equal to the occasion and succeeded in suppressing Dorr. 



330 


THE NATIONAL GOVERNMENT 


PART I 


discharged, sent Federal troops to Chicago, though not asked 
to do so by the governor of Illinois, and secured the passage of 
the mail trains. His action was generally approved both by 
the legal profession and by the nation. 

So far we have been considering the relations of the Na¬ 
tional government to the States as political communities. Let 
us now see what are its relations to the individual citizens of 
these States. They are citizens of the Union as well as of 
these States, and owe allegiance to both powers. Each power 
has a right to command their obedience. To which then, in 
case of conflict, is obedience due? 

The right of the State to obedience is wider in the area of 
matters which it covers. Prima fade, every State law, every 
order of a competent State authority, binds the citizen, whereas 
the National government has but a limited power: it can 
legislate or command only for certain purposes or on cer¬ 
tain subjects. But within the limits of its power, its authority 
is higher than that of the State, and must be obeyed even at 
the risk of disobeying the State. An instance in which a 
State official suffered for obeying his State where its direc¬ 
tions clashed with a provision of the Federal Constitution may 
set the point in a clear light. A statute of California had 
committed to the city and county authority of San Francisco 
the power of making regulations for the management of gaols. 
This authority had in 1876 passed an ordinance directing that 
every male imprisoned in the county gaol should “ immediately 
on his arrival have his hair clipped to a'uniform length of one 
inch from the scalp.” The sheriff having, under this ordi¬ 
nance, cut off the queue of a Chinese prisoner, Ho Ah Kow, 
was sued for damages by the prisoner, and the court, holding 
that the ordinance had been passed with a special view to the 
injury of the Chinese, who then considered the preservation of 
their queue to be a matter of honour, and that it operated 
unequally and oppressively upon them, in contravention of 
the fourteenth amendment to the Constitution of the United 
States, declared the ordinance invalid, and gave judgment 
against the sheriff. 1 Similar subsequent attempts against 
the Chinese, made under cover of the constitution of Califor- 

1 Case of Ho Ah Kow v. Matthew Nunan (July 1879), 5 Sawyer, Circuit 
Court Reports, p. 552. A similar ordinance had been some years before cour¬ 
ageously vetoed by Mr. Alvord, then mayor of San Francisco. 



chap, xxviii NATIONAL AND STATE GOVERNMENTS 331 


nia of 1879 and divers statutes passed thereunder, have been 
defeated by the courts. 

The safe rule for the private citizen may be thus expressed: 
“Ascertain whether the Federal law is constitutional (i.e. such 
as Congress has power to pass). If it is, conform your conduct 
to it at all hazards. If it is not, disregard it, and obey the 
law of your State.” This may seem hard on the private citi¬ 
zen. How shall he settle for himself such a delicate point of 
law as whether Congress had power to pass a particular stat¬ 
ute, seeing that the question may be doubtful and not have 
come before the courts? But in practice little inconvenience 
arises, for Congress and the State legislatures have learnt to 
keep within their respective spheres, and the questions that arise 
between them are seldom such as need disturb an ordinary man. 

The same remarks apply to conflicts between the commands 
of executive officers of the National government on the one 
hand, and those of State officials on the other. If the national 
officer is acting within his constitutional powers, he is entitled 
to be obeyed in preference to a State official, and conversely, if 
the State official is within his powers, and the national officer 
acting in excess of those which the Federal Constitution con¬ 
fers, the State official is to be obeyed. 

The limits of judicial power are more difficult of definition. 
Every citizen can sue and be sued or indicted both in the courts 
of his State and in the Federal courts, but in some classes of 
cases the former, in others the latter, is the proper tribunal, 
while in many it is left to the choice of the parties before which 
tribunal they will proceed. Sometimes a plaintiff who has 
brought his action in a State court finds when the case has 
gone a certain length that a point of Federal law turns up 
which entitles either himself or the defendant to transfer it to 
a Federal court, or to appeal to such a court should the decision 
have gone against the applicability of the Federal law. Suits 
are thus constantly transferred from State courts to Federal 
courts, but no one can ever reverse the process and carry a 
suit from a Federal court to a State court. Within its proper 
sphere of pure State law, — and of course the great bulk of the 
cases turn on pure State law, — there is no appeal from a State 
court to a Federal court; and though the point of law on which 
the case turns may be one which has arisen and been decided 
in the Supreme court of the Union, a State judge, in a State 



332 


THE NATIONAL GOVERNMENT 


PART I 


case, is not bound to regard that decision. It has only a moral 
weight, such as might be given to the decision of an English 
court, and where the question is one of State law, whether 
common law or statute law, in which State courts have decided 
one way and a Federal court the other way, the State judge 
ought to follow his own courts. So far does this go, that a 
Federal court in administering State law, ought to reverse its 
own previous decision rather than depart from the view which 
the highest State court has taken. 1 All this seems extremely 
complex. I can only say that it is less troublesome in practice 
than could have been expected, because American lawyers are 
accustomed to the intricacies of their system. 

When a plaintiff has the choice of proceeding in a State 
court or in a Federal court, he is sometimes, especially if he 
has a strong case, inclined to select the latter, because the Fed¬ 
eral judges are more independent than those of most of the 
States, and less likely to be influenced by any bias. So, too, 
if he thinks that local prejudice may tell against him, he will 
prefer a Federal court, because the jurors are summoned from 
a wider area, and because the judges are accustomed to exert a 
larger authority in guiding and controlling the jury. But it is 
usually more convenient to sue in a State court, seeing that 
there is such a court in every county, whereas Federal courts 
are comparatively few; in many States there is but one. 2 

The Federal authority, be it executive or judicial, acts upon 
the citizens of a State directly by means of its own officers, 
who are quite distinct from and independent of the State offi¬ 
cials. Federal indirect taxes, for instance, are levied all along 
the coast and over the country by Federal custom-house col¬ 
lectors and excisemen, acting under the orders of the treasury 
department at Washington. The judgments of Federal courts 
are carried out by United States marshals, likewise dispersed 
over the country and supplied with a staff of assistants. This 
is a provision of the utmost importance, for it enables the cen- 

1 This is especially the rule in cases involving the title to land. But though 
the theory is as stated in the text, the Federal courts not unfrequently (espe¬ 
cially in commercial cases), act upon their own view of the State law, and have 
sometimes been accused of going so far as to create a sort of Federal common 
law. 

2 Of course a plaintiff who thinks local prejudice will befriend him will choose 
the State court, but the defendant may have the cause removed to a Federal 
court if he be a citizen of another State or an alien, or if the question at issue 
is such as to give Federal jurisdiction. 



chap, xxviii NATIONAL AND STATE GOVERNMENTS 333 


tral National government to keep its finger upon the . people 
everywhere, and make its laws and the commands of its 
duly constituted authorities respected whether the State within 
whose territory it acts be heartily loyal or not, and whether 
the law which is being enforced be popular or obnoxious. The 
machinery of the National government ramifies over the whole 
Union as the nerves do over the human body, placing every 
point in direct connection with the central executive. The 
same is, of course, true of the army: but as the army is still, 
in proportion to the size of the country, small and stationed in 
but few spots, mostly in the Far West where Indian raids used 
to be feared, and where there are Federal reservations to protect, 
it scarcely comes into a view of the ordinary working of the system. 

What happens if the authority of the National government 
is opposed, if, for instance, an execution levied in pursuance 
of a judgment of a Federal court is resisted, or Federal excise¬ 
men are impeded in the seizure of an illicit distillery? 

Should the United States marshal or other Federal offi¬ 
cers be unable to overcome the physical force opposed to 
him, he may summon all good citizens to assist him, just as 
the sheriff may summon the posse comitatus. If this appeal 
proves insufficient, he must call upon the President, who may 
either order national troops to his aid or may require the militia 
of the State in which resistance is offered to overcome that 
resistance. Inferior Federal officers are not entitled to make 
requisitions for State force. The common law principle that 
all citizens are bound to assist the ministers of the law holds 
in America as in England, but it is as true in the one country 
as in the other, that what is everybody’s business is nobody’s 
business. Practically, the Federal authorities are not resisted 
in the more orderly States and more civilized districts. In 
such regions, however, as the mountains of Tennessee, Eastern 
Kentucky, and North Carolina the inland revenue officials find 
it very hard to enforce the excise laws, because the country is 
wild, concealment is easy among the woods and rocks, and the 
population sides with the smugglers. And in some of the western 
States an injunction granted by a court, whether a Federal or a 
State court, is occasionally disregarded. 1 Things were, of course, 

1 Attacks upon the Chinese, Japanese, and Hindus have taken place from time 
to time in Pacific coast States and have pot always been repressed with sufficient 
firmness by the local authorities. 



334 


THE NATIONAL GOVERNMENT 


PART I 


much worse before the War of Secession had established the 
authority of the central government on an immovable basis. 
Federal law did not prove an unquestioned protection either to 
persons who became in some districts unpopular from preaching 
Abolitionism, or to those Southern slave-catchers, who endeav¬ 
oured, under the Fugitive Slave laws, to recapture in the north¬ 
ern States slaves who had escaped from their masters. 1 Passion 
ran high, and however great be the respect for law, passion in 
America, as everywhere else in the world, will have its way. 

If the duly constituted authorities of a State resist the laws 
and orders of the National government, a more difficult ques¬ 
tion arises. This has several times happened. 

In November 1798 the legislature of Kentucky adopted 
resolutions declaring that the Constitution was not a sub¬ 
mission of the States to a general government, but a compact 
whereby they formed such a government for special purposes 
and delegated to it certain definite powers; that when the 
general government assumed undelegated powers, its acts were 
unauthoritative and void; and that it had not been made the 
exclusive or final judge of the extent of the powers delegated 
to it. Five weeks later the Virginia legislature passed similar 
but more guarded resolutions, omitting, inter alia , the last of the 
above-mentioned deliverances of Kentucky. Both States went 
on to declare that the Sedition and Alien Acts recently passed 
by Congress were unconstitutional, and asked the other States 
to join in this pronouncement and to co-operate in securing 
the repeal of the statutes. 2 Seven States answered, all in an 
adverse sense. 

In 1808 the legislatures of some of the New England States 

1 It was held that a State could not authorize its courts to enforce the Fugi¬ 
tive Slave laws. Being Federal statutes, their enforcement belonged to the 
National government only. Consider Prigg v. Pennsylvania, 16 Pet. 539. 

2 There have been endless discussions in America as to the true meaning and 
intent of these famous resolutions, a lucid account of which may be found in 
the article (by Mr. Alex. Johnston) “Kentucky Resolutions,” in the American 
Cyclopaedia of Political Science. The Kentucky resolutions were drafted by 
Jefferson, who however did not acknowledge his authorship till 1821, the Vir¬ 
ginia resolutions by the more cautious Madison. Those who defend Jefferson’s 
action argue, and probably rightly, that what he aimed at was not forcible 
resistance, but the amendment of the Constitution so as to negative the con¬ 
struction that was being put upon it by the Federalists. 

Judge Cooley observes to me, “ The most authoritative exponents of the 
States’ Rights creed would probably have said that ‘the nullification by the 
States of all unauthorized acts done under cover of the Constitution ’ intended 
by the Resolutions, was a nullification by constitutional means.” 



chap, xxviii NATIONAL AND STATE GOVERNMENTS 335 


passed resolutions condemning the embargo which the National 
government had laid upon shipping by an Act of that year. 
The State judges, emboldened by these resolutions, took an 
attitude consistently hostile to the embargo, holding it to be 
unconstitutional; popular resistance broke out in some of the 
coast towns; and the Federal courts in New England seldom 
succeeded in finding juries which would convict even for the 
most flagrant violation of its provisions. At the outbreak of 
the war of 1812 the governors of Massachusetts and Con¬ 
necticut refused to allow the State militia to leave their State 
in pursuance of a requisition made by the President under the 
authority of an Act of Congress, alleging the requisition to be 
unconstitutional; and in October 1814 the legislatures of these 
two States and of Rhode Island, States in which the New Eng¬ 
land feeling against the war had risen high, sent delegates to a 
Convention at Hartford, which, after three weeks of secret 
session, issued a report declaring that “it is as much the duty 
of the State authorities to watch over the rights reserved as 
of the United States to exercise the powers delegated,” laying 
down doctrines substantially similar to those of the Kentucky 
resolutions, and advising certain amendments to the Federal 
Constitution, with a menace as to further action in case these 
should be rejected. Massachusetts and Connecticut adopted 
the report; but before their commissioners reached Washington, 
peace with Great Britain had been concluded. In 1828-30 
Georgia refused to obey an Act of Congress regarding the Cherokee 
Indians, and to respect the treaties which the United States 
had made with that tribe and the Creeks. The Georgian legis¬ 
lature passed and enforced Acts in contempt of Federal authority, 
and disregarded the orders of the Supreme court, President 
Jackson, who had an old frontiersman’s hatred to the Indians, 
declining to interfere. 

Finally, in 1832, South Carolina, first in a State convention 
and then by her legislature, amplified while professing to repeat 
the claim of the Kentucky resolutions of 1798, declared the 
tariff imposed by Congress to be null and void as regarded her¬ 
self, and proceeded to prepare for secession and war. In none 
of these cases was the dispute fought out either in the courts or 
in the field; 1 and the questions as to the right of a State to 

1 The Acts complained of by Kentucky and Virginia provoked a reaction 
which led to the overthrow of the Federalist party which had passed them. 



336 


THE NATIONAL GOVERNMENT 


PART 1 


resist Federal authority, and as to the means whereby she could 
be coerced, were left over for future settlement. Settled they 
finally were by the Civil War of 1861-65, since which time the 
following doctrines may be deemed established : — 

No State has a right to declare an act of the Federal govern¬ 
ment invalid. 1 

No State has a right to secede from the Union. 

The only authority competent to decide finally on the con¬ 
stitutionality of an act of Congress or of the national executive 
is the Federal judiciary. 2 

Any act of a State legislature or a State executive conflicting 
with the Constitution, or with an act of the National govern¬ 
ment done under the Constitution, is really an act not of the 
State government, which cannot legally act against the Consti¬ 
tution, but of persons falsely assuming to act as such govern¬ 
ment, and is therefore ipso jure void. 3 Those who disobey 
Federal authority on the ground of the commands of a State 
authority are therefore insurgents against the Union who must 
be coerced by its power. The coercion of such insurgents is 
directed not against the State but against them as individual 
though combined wrongdoers. A State cannot secede and can¬ 
not rebel. Similarly, it cannot be coerced. 

Of the most important among them, one was repealed and the other, the Sedi¬ 
tion Act, expired in 1801 by effluxion of time. Jefferson, when he became 
President in that year, showed his disapproval of it by pardoning persons con¬ 
victed under it. The Embargo was raised by Congress in consequence of the 
strong opposition of New England. In these cases, therefore, it may be thought 
that the victory substantially remained with the protesting States, while the 
resistance of South Carolina to the tariff was settled by a compromise. 

1 Of course, as already observed, a State officer or a private citizen may dis¬ 
regard an act of the Federal government if he holds it unconstitutional. But 
he does so at his peril. 

2 Any court, State or Federal, may decide on such a question in the first in¬ 
stance. But if the question be a purely political one, it may be incapable of 
being decided by any court whatever (see Chapter XXIV.), and in such cases 
the decision of the political departments (Congress or the President, as the 
case may be) of the Federal government is necessarily final, though, of course, 
liable to be reversed by a subsequent Congress or President. The cases which 
arose on the Reconstruction Acts, after the War of Secession, afford an illus¬ 
tration. The attempts made to bring these before the courts failed, and the 
acts were enforced. See Georgia v. Stanton, 6 Wall. p. 57. 

3 It may, however, happen that a State law is unconstitutional in part only, 
perhaps in some trifling details, and in such cases that part only will be invalid, 
and the rest of the law will be upheld. For instance, a criminal statute might 
be framed so as to apply retrospectively as well as prospectively. So far as 
retrospective it would be bad, but good for all future cases. (See Const., Art. 
i. § 10, par. 1.) 



chap, xxviii NATIONAL AND STATE GOVERNMENTS 337 


This view of the matter, which seems on the whole to be that 
taken by the Supreme court in the cases that arose after the 
Civil War, disposes, as has been well observed by Judge Hare, 1 
of the difficulty which President Buchanan felt (see his mes¬ 
sage of 3d December 1860) as to the coercion of a State by the 
Union. He argued that because the Constitution did not pro¬ 
vide for such coercion, a proposal in the Convention of 1787 to 
authorize it having been ultimately dropped, it was legally im¬ 
possible. The best answer to this contention is that such a 
provision would have been superfluous, because a State cannot 
legally act against the Constitution. All that is needed is the 
power, unquestionably contained in the Constitution (Art. iii. 
§ 3), to subdue and punish individuals guilty of treason against 
the Union. 2 

Except in the cases hereinbefore specified, the National 
government has no right whatever of interfering either with 
a State as a commonwealth or with the individual citizens 
thereof, and may be lawfully resisted should it attempt to do 
so. 

“What then?” the European reader may ask. “Is the 
National government without the power and the duty of correct¬ 
ing the social and political evils which it may find to exist in a 
particular State, and which a vast majority of the nation may 
condemn? Suppose widespread brigandage to exist in one of 
the States, endangering life and property. Suppose contracts 
to be habitually broken, and no redress to be obtainable in the 
State courts. Suppose the police to be in league with the 
assassins. Suppose the most mischievous laws to be enacted, 
laws, for instance, which recognize polygamy, leave homicide 
unpunished, drive away capital by imposing upon it an intoler¬ 
able load of taxation. Is the nation obliged to stand by with 
folded arms while it sees a meritorious minority oppressed, the 
prosperity of the State ruined, a pernicious example set to other 
States ? Is it to be debarred from using its supreme author¬ 
ity to rectify these mischiefs ? ” 

The answer is, Yes. Unless the legislation or administration 
of such a State transgresses some provision of the Federal 

1 American Constitutional Law, p. 61. 

2 Swiss practice allows the Federal government to coerce a disobedient can¬ 
ton. This is commonly done by quartering Federal troops in it at its expense 
till its government yields — a form of coercion which Swiss frugality dislikes 
— or by withholding its share of Federal grants. 


z 



338 


THE NATIONAL GOVERNMENT 


PART I 


Constitution (such as that forbidding ex post facto laws, or laws 
impairing the obligation of a contract), the National govern¬ 
ment not only ought not to interfere but cannot interfere. The 
State must go its own way, with whatever injury to private 
rights and common interests its folly or perversity may cause. 

Such a "case is not imaginary. In the Slave States before 
the war, although the negroes were not, as a rule, harshly treated, 
many shocking laws were passed, and society was going from 
bad to worse. Even now it sometimes happens that in one or 
two western States the roads and even the railways are infested 
by robbers, there are parts of the country where justice is uncer¬ 
tain and may be unattainable when popular sentiment does not 
support the law, so that homicide goes unpunished by the courts, 
though sometimes punished by Judge Lynch. There are districts 
where armed bands occasionally appear, perpetrating nocturnal 
outrages which no State police has been provided to check. So, 
too, in a few of these States statutes opposed to sound principles 
of legislation have been passed, and have brought manifold evils 
in their train. But the Federal government looks on unperturbed, 
with no remorse for neglected duty. 

The obvious explanation of this phenomenon is that the 
large measure of independence left to the States under the 
Federal system makes it necessary to tolerate their misdoings 
in some directions. As a distinguished authority 1 observes to 
me, “The Federal Constitution provided for the protection of 
contracts, and against those oppressions most likely to result 
from popular passion and demoralization; and if it had been 
proposed to go further and give to the Federal authority a power 
to intervene in still more extreme cases, the answer would probably 
have been that such cases were far less likely to arise than was 
the Federal power to intervene improperly under the pressure 
of party passion or policy, if its intervention were permitted. 
To have authorized such intervention would have been to run 
counter to the whole spirit of the Constitution, which kept steadily 
in view as the wisest policy local government for local affairs, 
general government for general affairs only. Evils would 
unquestionably arise. But the Philadelphia Convention believed 
that they would be kept at a minimum and most quickly cured 
by strict adherence to this policy. The scope for Federal 
interference was considerably enlarged after the Civil War, but 

1 Judge Cooley. 



chap, xxyiii NATIONAL AND STATE GOVERNMENTS 339 


the general division of authority between the States and the 
nation was not disturbed.” 

So far from lamenting as a fault, though an unavoidable 
fault, of their Federal system, the State independence I have 
described, the Americans are inclined to praise it as a merit. 
They argue, not merely that the best way on the whole is to 
leave a State to itself, but that this is the only way in which 
a permanent cure of its diseases will be effected. They are con¬ 
sistent not only in their Federal principles but in their democratic 
principles. “ As laissez aller,” they say, “is the necessary course 
in a Federal government, so it is the right course in all free govern¬ 
ments. Law will never be strong or respected unless it has the 
sentiment of the people behind it. If the people of a State 
make bad laws, they will suffer for it. They will be the first to 
suffer. Let them suffer. Suffering, and nothing else, will 
implant that sense of responsibility which is the first step to 
reform. Therefore let them stew in their own juice : let them 
make their bed and lie upon it. If they drive capital away, 
there will be less work for the artisans : if they do not enforce 
contracts, trade will decline, and the evil will work out its remedy 
sooner or later. Perhaps it will be later rather than sooner: 
if so, the experience will be all the more conclusive. Is it said 
that the minority of wise and peaceable citizens may suffer? 
Let them exert themselves to bring their fellows round to a better 
mind. Reason and experience will be on their side. We cannot 
be democrats by halves; and where self-government is given, 
the majority of the community must rule. Its rule will in the 
end be better than that of any external power.” No doctrine 
more completely pervades the American people, the instructed as 
well as the uninstructed. Philosophers will tell you that it is 
the method by which Nature governs, in whose economy error 
is followed by pain and suffering, whose laws carry their own 
sanction with them. Divines will tell you that it is the method 
by which God governs : God is a righteous Judge and God is 
provoked every day, yet He makes His sun to rise on the evil 
and the good, and sends His rain upon the just and the unjust. 
He does not directly intervene to punish faults, but leaves sin 
to bring its own naturally appointed penalty. Statesmen 
will point to the troubles which followed the attempt to govern 
the reconquered seceding States, first, by military force and 
then by keeping a great part of their population disfranchised, 




340 


THE NATIONAL GOVERNMENT 


PART I 


and will declare that such evils as still exist in the South are 
far less grave than those which the denial of ordinary self- 
government involve. “So,” they pursue, “Texas and Cali¬ 
fornia will in time unlearn their bad habits and come out right 
if we leave them alone : Federal interference, even had we the 
machinery needed for prosecuting it, would check the natural 
process by which the better elements in these comparatively 
raw communities are purging away the maladies of youth, and 
reaching the settled health of manhood.” 

A European may say that there is a dangerous side to this 
application of democratic faith in local majorities and in laissez 
alter. Doubtless there is : yet those who have learnt to know 
the Americans will answer that no nation better understands its 
own business. 



CHAPTER XXIX 


CRITICISM OF THE FEDERAL SYSTEM 

All Americans have long been agreed that the only possible 
form of government for their country is a Federal one. All 
have perceived that a centralized system would be inexpedient, 
if not unworkable, over so large an area, and have still more 
strongly felt that to cut up the continent into absolutely inde¬ 
pendent States would not only involve risks of war but injure 
commerce and retard in a thousand ways the material develop¬ 
ment of every part of the country. But regarding the nature 
of the Federal tie that ought to exist there have been keen and 
frequent controversies, dormant at present, but which might 
break out afresh should there arise a new question of social 
or economic change capable of bringing the powers of Congress 
into collision with the wishes of any State or group of States. 
The general suitability to the country of a Federal system is 
therefore accepted, and need not be discussed. I pass to consider 
the strong and weak points of that which exists. 

The faults generally charged on federations as compared with 
unified governments are the following : — 

I. Weakness in the conduct of foreign affairs. 

II. Weakness in home government, that is to say, deficient 
authority over the component States and the individual citizens. 

III. Liability to dissolution by the secession or rebellion of 
States. 

IV. Liability to division into groups and factions by the 
formation of separate combinations of the component States. 

V. Absence of the power of legislating on certain subjects 
wherein legislation uniform over the whole Union is needed. 

VI. Want of uniformity among the States in legislation and 
administration. 

VII. Trouble, expense, and delay due to the complexity of a 
double system of legislation and administration. 

The first four of these are all due to the same cause, viz. the 

341 


342 


THE NATIONAL GOVERNMENT 


PART I 


existence within one government, which ought to be able to 
speak and act in the name and with the united strength of the 
nation, of distinct centres of force, organized political bodies 
into which part of the nation’s strength has flowed, and whose 
resistance to the will of the majority of the whole nation is 
likely to be more effective than could be the resistance of in¬ 
dividuals, because such bodies have each of them a government, 
a revenue, a militia, a local patriotism to unite them, whereas 
individual recalcitrants, however numerous, would be unor¬ 
ganized, and less likely to find a legal standing ground for 
opposition. The gravity of the first two of the four alleged 
faults has been exaggerated by most writers, who have assumed, 
on insufficient grounds, that Federal governments are neces¬ 
sarily weak. Let us, however, see how far America has experi¬ 
enced such troubles from these features of a Federal system. 

I. In its early years, the Union was not successful in the man¬ 
agement of its foreign relations. Few popular governments 
are, because a successful foreign policy needs in a world such as 
ours conditions which popular governments seldom enjoy. In 
the days of Adams, Jefferson, and Madison, the Union put up 
with a great deal of ill-treatment from France as well as from 
England. It drifted rather than steered into the war of 1812. 
The conduct of that war was hampered by the opposition of the 
New England States. The Mexican war of 1846 was due to 
the slaveholders; but as the combination among the Southern 
leaders which entrapped the nation into that conflict might 
have been equally successful in a unified country, the blame 
need not be laid at the door of Federalism. The principle of 
abstention from Old World complications has been so heartily 
and consistently adhered to that the capacities of the Federal 
system for the conduct of foreign affairs have been seldom 
seriously tried, so far as concerned European powers; and the 
likelihood of any danger from abroad is so slender that it may 
be practically ignored. But when a question of external policy 
arises which interests only one part of the Union (such for 
instance as the immigration of Asiatic labourers), the existence 
of States feeling themselves specially affected is apt to have a 
strong and probably an unfortunate influence. Only in this 
way can the American government be deemed likely to suffer 
in its foreign relations from its Federal character. 

II. For the purposes of domestic government the Federal 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 343 


authority is now, in ordinary times, sufficiently strong. How¬ 
ever, as was remarked in last chapter, there have been occa¬ 
sions when the resistance of even a single State disclosed its 
weakness. Had a man less vigorous than Jackson occupied 
the presidential chair in 1832, South Carolina would probably 
have prevailed against the Union. In the Kansas troubles of 
1855-56 the national executive played a sorry part; and even 
in the resolute hands of President Grant it was hampered in 
the re-establishment of order in the reconquered southern 
States by the rights which the Federal Constitution secured to 
those States. The only general conclusion on this point which 
can be drawn from history is that while the central govern¬ 
ment is likely to find less and less difficulty in enforcing its will 
against a State or disobedient subjects, because the prestige of its 
success in the Civil War has strengthened it, and the facilities 
of communication make the raising and moving of troops more 
easy, nevertheless recalcitrant States, or groups of States, 
still enjoy certain advantages for resistance, advantages due 
partly to their legal position, partly to their local sentiment, 
which rebels might not have in unified countries like England, 
France, or Italy. 

III. Everybody knows that it was the Federal system and 
the doctrine of State sovereignty grounded thereon, and not 
excluded, though not recognized, by the Constitution, which 
led to the secession of 1861, and gave European powers a 
plausible ground for recognizing the insurgent minority as 
belligerents. Nothing seems now less probable than another 
secession, not merely because the supposed legal basis for it 
has been abandoned, and because the advantages of continued 
union are more obvious than ever before, but because the 
precedent of the victory won by the North will discourage like 
attempts in the future. 1 This is so strongly felt that it has not 
even been thought worth while to add to the Constitution an 
amendment negativing the right to secede. The doctrine of the 
legal indestructibility of the Union is now well established. To 
establish it, however, cost thousands of millions of dollars and 
the lives of a million of men. 

IV. The combination of States into groups was a familiar 

1 The Roman Catholic cantons of Switzerland (or rather the majority of 
them) formed a separate league (the so-called Sonderbund) which it needed 
the war of 1847 to put down. And the effect of that war was, as in the parallel 
case of America, to tighten the Federal bond for the future. 



344 


THE NATIONAL GOVERNMENT 


PART L 


feature of politics before the war. South Carolina and the 
Gulf States constituted one such, and the most energetic, group ; 
the New England States frequently acted as another, especially 
during the war of 1812. At present, though there are several 
sets of States whose common interests lead their representatives 
in Congress to act together, it is no longer the fashion for States 
to combine in an official way through their State organizations, 
and their doing so would excite reprehension. It is easier, safer, 
and more effective to act through the great national parties. 
Any considerable State interest (such as that of the silver- 
miners or cattle-men or Protectionist manufacturers) can gen¬ 
erally compel a party to conciliate it by threatening to forsake the 
party if neglected. Political action runs less in State channels 
than it did formerly, and the only really threatening form which 
the combined action of States could take, that of using for a 
common disloyal purpose State revenues and the machinery of 
State governments, has become, since the failure of secession, 
most improbable. 

It has been a singular piece of good fortune that lines of 
religious difference have never happened to coincide with State 
lines; nor has any particular creed ever dominated any group 
of States. The religious forces which in some countries and 
times have given rise to grave civil discord, have in America 
never weakened the Federal fabric. 

V. Towards the close of the nineteenth century two signifi¬ 
cant phenomena began to be seen. One was the increasing 
power of incorporated companies and combinations of capitalists. 
It began to be felt that there ought to be a power of regulating 
corporations, and that such regulation cannot be effective unless it 
proceeds from Federal authority and applies all over the Union. 
At present the power of Congress is deemed to be limited to the 
operations of inter-State commerce, so that the rest of the work 
done by corporations, with the law governing their creation and 
management, belongs to the several States. The other phenom¬ 
enon was the growing demand for various social reforms, some 
of which (such as the regulation of child labour) are deemed to be 
neglected by the more backward States, while others cannot be 
fully carried out except by laws of general application. The 
difficulty of meeting this demand under existing conditions has 
led to many complaints, and while some call for the amendment 
of the Constitution, others have gone so far as to suggest that 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 345 


the courts ought now to construe the Constitution as conferring 
powers it has not hitherto been deemed to include. 

VI. The want of uniformity in private law and methods of 
administration is an evil which different minds will judge by 
different standards. Some may think it a positive benefit to 
secure a variety which is interesting in itself and makes pos¬ 
sible the trying of experiments from which the whole country 
may profit. Is variety within a country more a gain or a loss ? 
Diversity in coinage, in weights and measures, in the rules 
regarding bills and cheques and banking and commerce gener¬ 
ally, is obviously inconvenient. Diversity in dress, in food, in 
the habits and usages of society, is almost as obviously a thing 
to rejoice over, because it diminishes the terrible monotony of 
life. Diversity in religious opinion and worship excited horror 
in the Middle Ages, but now passes unnoticed, except where 
governments are intolerant. In the United States the possible 
diversity of laws is immense. Subject to a few prohibitions 
contained in the Constitution, each State can play whatever 
tricks it pleases with the law of family relations, of inheritance, 
of contracts, of torts, of crimes. But the actual diversity 
is not great, for all the States, save Louisiana, have taken the 
English common and statute law of 1776 as their point of 
departure, and have adhered to its main principles. A more 
complete uniformity as regards marriage and divorce is desirable, 
for it is particularly awkward not to know whether you are 
married or not, nor whether you have been or can be divorced 
or not; and several States have tried bold experiments on 
divorce laws. 1 But, on the whole, far less inconvenience than 
could have been expected seems to be caused by the vary¬ 
ing laws of different States, partly because commercial law is 
the department in which the diversity is smallest, partly because 
American practitioners and judges have become expert in apply¬ 
ing the rules for determining which law, where those of different 

1 There is, however, little substantial diversity in the laws of marriage in 
different States, the rule everywhere prevailing that no special ceremony is 
requisite, and the statutory forms not being deemed imperative. The diver¬ 
gences in divorce law are greater, and the laxity of the law and of procedure in 
some States altogether lamentable ; yet even as regards divorce more trouble 
arises from frauds practised on the laws as well as from the abuse of allowing 
divorces to be granted on a fictitious domicil without due notice to the other 
party, than from divergent provisions in the laws themselves. 

There was a recent case in which it seems to have been held that a marriage 
might be still valid in one State though terminated by divorce in another. 



346 


THE NATIONAL GOVERNMENT 


PART I 


States are in question, ought to be deemed to govern a given 
case. 1 However, some States have taken steps to reduce this 
diversity by appointing Commissions, instructed to meet and 
confer as to the best means of securing uniform State legislation 
on some important subjects, and progress in this direction has 
been made. 

VII. He who is conducted over an iron-clad warship, and sees 
the infinite intricacy of the machinery and mechanical appli¬ 
ances which it contains and by which its engines, its guns, its 
turrets, its torpedoes, its apparatus for anchoring and making 
sail, are worked, is apt to think that it must break down in the 
rough practice of war. He is told, however, that the more is 
done by machinery, the more safely and easily does everything 
go on, because the machinery can be relied on to work accurately, 
and the performance by it of the heavier work leaves the crew 
free to attend to the general management of the vessel and her 
armament. So in studying the elaborate devices with which 
the Federal system of the United States has been equipped, 
one fancies that with so many authorities and bodies whose 
functions are intricately interlaced, and some of which may 
collide with others, there must be a great risk of break-downs 
and deadlocks, not to speak of an expense much exceeding 
that which is incident to a simple centralized government. In 
America, however, smoothness of working is secured by elabo¬ 
ration of device ; and complex as the mechanism of the govern¬ 
ment may appear, the citizens have grown so familiar with it 
that its play is smooth and easy, attended with less trouble, 
and certainly with less suspicion on the part of the people, than 
would belong to a scheme which vested all powers in one ad¬ 
ministration and one legislature. The expense is admitted, 
but is considered no grave defect when compared with the waste 
which arises from untrustworthy officials and legislators whose 
depredations would, it is thought, be greater were their sphere 
of action wider, and the checks upon them fewer. He who 
examines a system of government from without is generally dis¬ 
posed to overrate the difficulties in working which its complexity 
causes. Few things, for instance, are harder than to explain 

1 Although the law of Scotland still differs in many material points from 
that of England and Ireland, having had a different origin, British subjects 
and courts do not find the practical inconveniences arising from the diversities 
to be serious except as respects marriage and the succession to property. The 
mercantile law of the two countries tends to become practically the same. 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 347 


to a person who has not been a student in one of the two ancient 
English universities the nature of their highly complex constitu¬ 
tion and the relation of the colleges to the university. If he 
does apprehend it he pronounces it too intricate for the purposes 
it has to serve. To those who have grown up under it, nothing 
is simpler and more obvious. 

There is a blemish characteristic of the American federation 
which Americans seldom notice because it seems to them un¬ 
avoidable. This is the practice in selecting candidates for Fed¬ 
eral office of regarding not so much the merits of the candidate 
as the effect which his nomination will have upon the vote of 
the State to which he belongs. Second-rate men are run for 
first-rate posts, not because the party which runs them overrates 
their capacity, but because it expects to carry their State either 
by their local influence or through the pleasure which the State 
feels in the prospect of seeing one of its own citizens in high 
office. This of course works in favour of the politicians who 
come from a large State. No doubt the leading men of a large 
State are prima facie more likely to be men of high ability than 
those of a small State, because the field of choice is wider and 
the competition keener. One is reminded of the story of the 
leading citizen in the isle of Seriphus who observed to Themisto- 
cles, “You would not have been famous had you been born 
in Seriphus,” to which Themistocles replied, “Neither would 
you had you been born in Athens.” The two great States 
of Virginia and Massachusetts reared one-half of the men who 
won distinction in the first fifty years of the history of the Repub¬ 
lic. Nevertheless it often happens that a small State produces 
a first-rate man, whom the country ought to have in one of its 
highest places, but who is passed over because the Federal sys¬ 
tem gives great weight to the voice of a State, and because 
State sentiment is so strong that the voters of a State which 
has a large and perhaps a doubtful vote to cast in national 
elections, prefer an inferior man in whom they are directly 
interested to a superior one who is a stranger. It is also 
unfortunate that the President’s liberty of choice in forming 
his Cabinet should be restricted by the doctrine that he must 
not have in it, if possible, two persons from the same State. 

I have left to the last the gravest reproach which Europeans 
have been wont to bring against Federalism in America. They 
attributed to it the origin, or at least the virulence, of the great 




348 


THE NATIONAL GOVERNMENT 


PART I 


struggle over slavery which tried the Constitution so severely. 
That struggle created parties which, though they had adherents 
everywhere, no doubt tended more and more to become identi¬ 
fied with States, controlling the State organizations and bending 
the State governments to their service. It gave tremendous 
importance to legal questions arising out of the differences be¬ 
tween the law of the Slave States and the Free States, questions 
which the Constitution had either evaded or not foreseen. It 
shook the credit of the Supreme court by making the judicial 
decision of those questions appear due to partiality to the 
Slave States. It disposed the extreme men on both sides to 
hate the Federal Union which bound them in the same body 
with their antagonists. It laid hold of the doctrine of State 
rights and State sovereignty as entitling a commonwealth 
which deemed itself aggrieved to shake off allegiance to the 
national government. Thus at last it brought about secession 
and the great civil war. Even when the war was over, the 
dregs of the poison continued to haunt and vex the system, 
and bred fresh disorders in it. The constitutional duty of re¬ 
establishing the State governments of the conquered States on 
the one hand, and on the other hand the practical danger of 
doing so while their people remained disaffected, produced the 
military governments, the “carpet bag” governments, the 
Ku Klux Klan outrages, the gift of suffrage to a negro popu¬ 
lation unfit for such a privilege, yet apparently capable of 
being protected in no other way. All these mischiefs, it has 
often been argued, are the results of the Federal structure of 
the government, which carried in its bosom the seeds of its own 
destruction, seeds sure to ripen so soon as there arose a question 
that stirred men deeply. 

It may be answered not merely that the National govern¬ 
ment has survived this struggle and emerged from it stronger 
than before, but also that Federalism did not produce the strug¬ 
gle, but only gave to it the particular form of a series of legal 
controversies over the Federal pact followed by a war of States 
against the Union. Where such vast economic interests were 
involved, and such hot passions roused, there must anyhow 
have been a conflict, and it may well be that a conflict raging 
within the vitals of a centralized government would have 
proved no less terrible and would have left as many noxious 
sequelae behind. 



chap, xxix CRITICISM OF THE FEDERAL SYSTEM 349 


In blaming either the conduct of a person or the plan and 
scheme of a government for evils which have actually fol¬ 
lowed, men are apt to overlook those other evils, perhaps as 
great, which might have flowed from different conduct or some 
other plan. All that can fairly be concluded from the history 
of the American Union is that Federalism is obliged by the law 
of its nature to leave in the hands of States powers whose 
exercise may give to political controversy a peculiarly dangerous 
form, may impede the assertion of national authority, may even, 
when long-continued exasperation has suspended or destroyed 
the feeling of a common patriotism, threaten national unity itself. 
Against this danger is to be set the fact that the looser structure 
of a Federal government and the scope it gives for diversities of 
legislation in different parts of a country may avert sources of 
discord, or prevent local discord from growing into a contest 
of national magnitude. 



CHAPTER XXX 


MERITS OF THE FEDERAL SYSTEM 

I do not propose to discuss in this chapter the advantages 
of Federalism in general, for to do this we should have to wander 
off to other times and countries, to talk of Achaia and the 
Hanseatic League and the Swiss Confederation. I shall 
comment on those merits only which the experience of the 
American Union illustrates. 

There are two distinct lines of argument by which their 
Federal system was recommended to the framers of the Con¬ 
stitution, and upon which it is still held forth for imitation 
to other countries. These lines have been so generally con¬ 
founded that it is well to present them in a precise form. 

The first set of arguments point to Federalism proper, and are 
the following: — 

1. That Federalism furnishes the means of uniting com¬ 
monwealths into one nation under one national government 
without extinguishing their separate administrations, legisla¬ 
tures, and local patriotisms. As the Americans of 1787 would 
probably have preferred complete State independence to the 
fusion of their States into a unified government, Federalism 
was the only resource. So when the new Germanic Empire, 
which is really a Federation, was established in 1871, Bavaria 
and Wurtemberg could not have been brought under a national 
government save by a Federal scheme. Similar suggestions, 
as every one knows, have been made for re-settling the relations 
of Ireland to Great Britain, and of the self-governing British 
colonies to the United Kingdom. There are causes and condi¬ 
tions which dispose independent or semi-independent commu¬ 
nities, or peoples living under loosely compacted governments, 
to form a closer union in a Federal form. There are other 
causes and conditions which dispose the subjects of one gov¬ 
ernment, or sections of these subjects, to desire to make their 
governmental union less close by substituting a Federal for a 

350 


chap, xxx MERITS OF THE FEDERAL SYSTEM 


351 


unitary system. In both sets of cases, the centripetal or cen¬ 
trifugal forces spring from the local position, the history, the 
sentiments, the economic needs of those among whom the prob¬ 
lem arises; and that which is good for one people or political 
body is not necessarily good for another. Federalism is an 
equally legitimate resource whether it is adopted for the sake 
of tightening or for the sake of loosening a pre-existing bond. 1 

2. That Federalism supplies the best means of developing a 
new and vast country. It permits an expansion whose extent, 
and whose rate and manner of progress, cannot be foreseen to 
proceed with more variety of methods, more adaptation of laws 
and administration to the circumstances of each part of the ter¬ 
ritory, and altogether in a more truly natural and spontaneous 
way, than can be expected under a centralized government, 
which is disposed to apply its settled system through all its do¬ 
minions. Thus the special needs of a new region are met by the 
inhabitants in the way they find best: its laws can be adapted 
to the economic conditions which from time to time present 
themselves; its special evils can be cured by special remedies, 
perhaps more drastic than an old country demands, perhaps 
more lax than an old country would tolerate ; while at the same 
time the spirit of self-reliance among those who build up these 
new communities is stimulated and respected. 

3. That Federalism prevents the rise of a despotic central 
government, absorbing other powers, and menacing the private 
liberties of the citizen. This may now seem to have been an 
idle fear, so far as America was concerned. It was, however, 
a very real fear among the ancestors of the present Americans, 
and nearly led to the rejection even of so undespotic an instru¬ 
ment as the Federal Constitution of 1789. Congress (or the 
President, as the case may be) is still sometimes described as 
a tyrant,by the party which does not control it, simply because 
it is a central government: and the States are represented as 
bulwarks against its encroachments. 

The second set of arguments relate to and recommend not 
so much Federalism as local self-government. I state them 
briefly because they are familiar. 

4. Self-government stimulates the interest of people in the 

1 1 have treated of this subject in an essay on the centripetal and centrifugal 
forces in Constitutional Law in a book entitled Studies in History and Juris - 
prudence. 



352 


THE NATIONAL GOVERNMENT 


PART I 


affairs of their neighbourhood, sustains local political life, edu¬ 
cates the citizen in his daily round of civic duty, teaches him 
that perpetual vigilance and the sacrifice of his own time and 
labour are the price that must be paid for individual liberty and 
collective prosperity. 

5. Self-government secures the good administration of local 
affairs by giving the inhabitants of each locality due means of 
overseeing the conduct of their business. 

That these two sets of grounds are distinct appears from the 
fact that the sort of local interest which local self-government 
evokes is quite a different thing from the interest men feel in 
the affairs of a large body like an American State. So, too, the 
control over its own affairs of a township, or even a small 
county, where everybody can know what is going on, is quite 
different from the control exercisable over the affairs of a com¬ 
monwealth with a million of people. Local self-government 
may exist in a unified country like England, and may be want¬ 
ing in a Federal country like Germany. And in America itself, 
while some States, like those of New England, possessed an 
admirably complete system of local government, others, such 
as Virginia, the old champion of State sovereignty, were im¬ 
perfectly provided with it. Nevertheless, through both sets of 
arguments there runs the general principle, applicable in every 
part and branch of government, that, where other things are 
equal, the more power is given to the units which compose the 
nation, be they large or small, and the less to the nation as a 
whole and to its central authority, so much the fuller will be 
the liberties and so much greater the energy of the individuals 
who compose the people. This principle, though it had not 
been then formulated in the way men formulate it now, was 
heartily embraced by the Americans. Perhaps it was because 
they agreed in taking it as an axiom that they seldom referred 
to it in the subsequent controversies regarding State rights. 
These controversies proceeded on the basis of the Constitution as 
a law rather than on considerations of general political theory. 
A European reader of the history of the first seventy years of the 
United States is surprised how little is said, through the inter¬ 
minable discussions regarding the relation of the Federal gov¬ 
ernment to the States, on the respective advantages of cen¬ 
tralization or localization of powers as a matter of historical 
experience and general expediency. 



chap, xxx MERITS OF THE FEDERAL SYSTEM 


353 


Three further benefits to be expected from a Federal system 
may be mentioned, benefits which seem to have been unnoticed 
or little regarded by those who established it in America. 

6. Federalism enables a people to try experiments in legis¬ 
lation and administration which could not be safely tried in 
a large centralized country. A comparatively small common¬ 
wealth like an American State easily makes and unmakes its 
laws; mistakes are not serious, for they are soon corrected ; 
other States profit by the experience of a law or a method 
which has worked well or ill in the State that has tried it. 

7. Federalism, if it diminishes the collective force of a nation, 
diminishes also the risks to which its size and the diversities of 
its parts expose it. A nation so divided is like a ship built with 
water-tight compartments. When a leak is sprung in one com¬ 
partment, the cargo stowed there may be damaged, but the other 
compartments remain dry and keep the ship afloat. So if social 
discord or an economic crisis has produced disorders or foolish 
legislation in one member of the Federal body, the mischief may 
stop at the State frontier instead of spreading through and taint¬ 
ing the nation at large. 

8. Federalism, by creating many local legislatures with wide 
powers, relieves the national legislature of a part of that large 
mass of functions which might otherwise prove too heavy for it. 
Thus business is more promptly despatched, and the great cen¬ 
tral council of the nation has time to deliberate on those ques¬ 
tions which most nearly touch the whole country. 

All of these arguments recommending Federalism have proved 
valid in American experience. 

To create a nation while preserving the States was the main 
reason for the grant of powers which the National government 
received; an all-sufficient reason, and one which holds good 
to-day. The several States have changed greatly since 1789, 
but they are still commonwealths whose wide authority and 
jurisdiction practical men are agreed in desiring to maintain. 

Not much was said in the Convention of 1787 regarding the 
best methods of extending government over the unsettled terri¬ 
tories lying beyond the Alleghany mountains. 1 It was, however, 
assumed that they would develop as the older colonies had de¬ 
veloped, and in point of fact each district, when it became 

1 In 1787, however, the great Ordinance regulating the North-West Terri¬ 
tory was enacted by the Congress of the Confederation. 

2 A 



354 


THE NATIONAL GOVERNMENT 


PART I 


sufficiently populous, was formed into a self-governing State, 
the less populous divisions still remaining in the status of 
semi-self-governing Territories. Although many blunders have 
been committed in the process of development, especially in 
the reckless contraction of debt and the wasteful disposal of 
the public lands, greater evils might have resulted had the 
creation of local institutions and the control of new communi¬ 
ties been left to the Central government. 1 Congress would have 
been not less improvident than the State governments, for it 
would have been even less closely watched. The opportunities 
for jobbery would have been irresistible, the growth of order 
and civilization probably slower. It deserves to be noticed that, 
in granting self-government to all those of her colonies whose 
population is of English race, England has practically adopted 
the same plan as the United States have done with their west¬ 
ern territory. The results have been generally satisfactory, 
although England, like America, has found that her colonists 
have, in some regions been disposed to treat the aboriginal in¬ 
habitants, wffiose lands they covet and whose persons they 
hate, with a harshness and injustice which the mother country 
would gladly check. 

The arguments which set forth the advantages of local self- 
government were far more applicable to the States of 1787 than 
to those of 1907. Virginia, then the largest State, had only half 
a million free inhabitants, less than the present population of 
Baltimore. Massachusetts had 450,000, Pennsylvania 400,000, 
New York 300,000 ; while Georgia, Rhode Island, and Delaware 
had (even counting slaves) less than 200,000 between them. 2 
These were communities to which the expression “local self- 
government” might be applied, for, although the population 
was scattered, the numbers were small enough for the citizens 
to have a personal knowledge of their leading men, and a per- 

1 The United States is proprietor of the public domain in the Territories, 
and when a new State is organized the ownership is not changed. The United 
States, however, makes grants of wild lands to the new State as follows : — 
(1) Of every section numbered 16 (being one thirty-sixth of all) for the support 
of common schools. (2) Of lands to endow a university. (3) Of the lands 
noted in the surveys as swamp lands, and which often are valuable. (4) It has 
usually made further grants to aid in the construction of railroads, and for an 
agricultural college. The grants commonly leave the United States a much 
larger landowner within the State than is the State itself, and when all the 
dealings of the National government with its lands are considered, it is more 
justly chargeable with squandering the public domain than the States are. 

2 1 give round numbers, reduced a little from the census of 1790. 



chap, xxx MERITS OF THE FEDERAL SYSTEM 


355 


sonal interest (especially as a large proportion were land- 
owners) in the economy and prudence with which common 
affairs were managed. Now, however, when of the nearly fifty 
States twenty-nine have more than a million inhabitants, and 
six have more than three millions, the newer States, being, 
moreover, larger in area than most of the older ones, the stake 
of each citizen is relatively smaller, and generally too small to 
sustain his activity in politics, and the party chiefs of the 
State are known to him only by the newspapers or by their 
occasional visits on a stumping tour. 1 

All that can be claimed for the Federal system under this 
head of the argument is that it provides the machinery for a 
better control of the taxes raised and expended in a given 
region of the country, and a better oversight of the public works 
undertaken there than would be possible were everything 
left to the Central government. 2 As regards the educative 
effect of numerous and frequent elections, it will be shown 
in a later chapter that elections in America are too many and 
come too frequently. Overtaxing the attention of the citizen 
and frittering away his interest, they leave him at the mercy 
of knots of selfish adventurers. 

The utility of the State system in localizing disorders or 
discontents, and the opportunities it affords for trying easily 
and safely experiments which ought to be tried in legislation 
and administration, constitute benefits to be set off against 
the risk, referred to in the last preceding chapters, that evils 
may continue in a district, may work injustice to a minority 
and invite imitation by other States, which the wholesome 
stringency of the Central government might have suppressed. 

A more unqualified approval may be given to the division 
of legislative powers. The existence of the State legislatures 

1 To have secured the real benefits of local self-government the States ought 
to have been kept at a figure not much above that of their original population, 
their territory being cut up into new States as the population increased. Had 
this been done — no doubt at the cost of some obvious disadvantages, such as 
the diminution of State historical feeling, the undue enlargement of the Senate, 
and the predominance of a single large city in a State, - there would now be 
more than two hundred States. Of course in one sense the States are no larger 
than they were in the early days, because communication from one part to 
another is in all of them far easier, quicker, and cheaper than it then was. 

2 It must be remembered that in most parts of the Union the local self- 
government of cities, counties, townships, and school districts exists in a more 
complete form than in any of the great countries of Europe. — See Chapters 
XLVIII.-LII. post. 



356 


THE NATIONAL GOVERNMENT 


PART I 


relieves Congress of a burden too heavy for its shoulders; for 
although it has far less foreign policy to discuss than the Par¬ 
liaments of England, France, or Italy, and although the sepa¬ 
ration of the executive from the legislative department gives 
it less responsibility for the ordinary conduct of the admin¬ 
istration than devolves on those Chambers, it could not pos¬ 
sibly, were its competence as large as theirs, deal with the 
multiform and increasing demands of the different parts of 
the Union. There is great diversity in the material condi¬ 
tions of different parts of the country, and at present the peo¬ 
ple, particularly in the West, are eager to have their difficul¬ 
ties handled, their economic and social needs satisfied, by the 
State and the law. It would be extremely difficult for any 
central legislature to pass measures suited to these dissimilar 
and varying conditions. How little Congress could satisfy 
them appears by the very imperfect success with which it 
cultivates the field of legislation to which it is now limited. 

These merits of the Federal system of government which I 
have enumerated are the counterpart and consequences of that 
limitation of the central authority whose dangers were indi¬ 
cated in last chapter. They are, if one may reverse the French 
phrase, the qualities of Federalism’s defects. The problem 
which all federalized nations have to solve is how to secure 
an efficient central government and preserve national unity, 
while allowing free scope for the diversities, and free play to 
the authorities, of the members of the federation. It is, to 
adopt that favourite astronomical metaphor which no American 
panegyrist of the Constitution omits, to keep the centrifugal 
and centripetal forces in equilibrium, so that neither the planet 
States shall fly off into space, nor the sun of the Central gov¬ 
ernment draw them into its consuming fires. The charac¬ 
teristic merit of the American Constitution lies in the method 
by which it has solved this problem. It has given the 
National government a direct authority over all citizens, irre¬ 
spective of the State governments, and has therefore been 
able safely to leave wide powers in the hands of those govern¬ 
ments. And by placing the Constitution above both the 
National and the State governments, it has referred the arbi¬ 
trament of disputes between them to an independent body, 
charged with the interpretation of the Constitution, a body 
which is to be deemed not so much a third authority in the 



chap, xxx MERITS OF THE FEDERAL SYSTEM 


357 


government as the living voice of the Constitution, the un¬ 
folder of the mind of the people whose will stands expressed 
in that supreme instrument. 

The application of these two principles, unknown to, or at 
any rate little used by, any previous federation, 1 has contrib¬ 
uted more than anything else to the stability of the American 
system, and to the reverence which its citizens feel for it, a 
reverence which is the best security for its permanence. Yet 
even these devices would not have succeeded but for the pres¬ 
ence of a mass of moral and material influences stronger than 
any political devices, which have maintained the equilibrium 
of centrifugal and centripetal forces. On the one hand there 
has been the love of local independence and self-government; 
on the other, the sense of community in blood, in language, in 
habits and ideas, a common pride in the national history and 
the national flag. 

Quid leges sine moribus t The student of institutions, as well 
as the lawyer, is apt to overrate the effect of mechanical con¬ 
trivances in politics. I admit that in America they have had 
one excellent result; they have formed a legal habit in the 
mind of the nation. But the true value of a political contriv¬ 
ance resides not in its ingenuity but in its adaptation to the 
temper and circumstances of the people for whom it is designed, 
in its power of using, fostering, and giving a legal form to those 
forces of sentiment and interest which it finds in being. So it 
has been with the American system. Just as the passions 
which the question of slavery evoked strained the Federal 
fabric, disclosing unforeseen weaknesses, so the love of the 
Union, the sense of the material and social benefits involved 
in its preservation, appeared in unexpected strength, and 
manned with zealous defenders the ramparts of the sovereign 
Constitution. It is this need of determining the suitability of 
the machinery for the workmen and its * probable influence 
upon them, as well as the capacity of the workmen for using 
and their willingness to use the machinery, which makes it so 
difficult to predict the operation of a political contrivance, or, 
when it has succeeded in one country, to advise its imitation 
in another. The growing strength of the National government 

1 The central government in the Achaean League had apparently a direct 
authority over the citizens of the several cities, but it was so ill defined and so 
little employed that we can hardly cite that instance as a precedent. 



358 


THE NATIONAL GOVERNMENT 


PART I 


in the United States is largely due to sentimental forces that 
were weak a century ago, and to a development of internal 
communications which was then undreamt of. And the de¬ 
vices which we admire in the Constitution might have proved 
unworkable among a people less patriotic and self-reliant, less 
law-loving and law-abiding, than were the English of America. 

Supplementary Note to Edition of 1910 

Though I have made such corrections in the foregoing chapters as 
are needed to bring the statements made in them up to the present 
time, it is proper to note here in a concise way certain general ten¬ 
dencies which have affected, and may hereafter more largely affect, the 
working of the Federal system. 

The growth of population, the extension of communications and 
their larger use both for commerce and for the goings to and fro of the 
inhabitants, as well as the emergence of new ideas and new needs, 
have brought about many changes. Three deserve to be singled out as 
of special importance. (1) The importance of the things which the 
National Government does, has tended to increase as compared with 
the things which the States do. (2) Uniformity of regulation over 
the country has become more needful. (3) In the matters which are 
regulated partly by the National Government and partly by the States, 
the inconvenience arising from a division and intermingling of powers 
has become more evident and more serious. 

(1) The army and the navy are larger and more costly than they 
were ; and excite more attention. Questions of tariff more and more 
affect industry and trade. There is more interest, though perhaps not 
yet as much as there ought to be, in the conservation of natural re¬ 
sources, including the development of internal waterways, and the con¬ 
trol and distribution of water power. 

(2) The evils arising from the backwardness of some States, and 
the boldness or levity of some others, in legislating upon such sub¬ 
jects as child labour, sanitation, divorce, the prevention of accidents 
in mining and other industries, seem more evident, not because things 
are any worse than they were, for they are in most respects better, 
but because the spirit of reform and the humanitarian sympathy 
which seeks to amend the ills of life have become more active. 
For instance it is now held regrettable that temptations should be 
offered to capitalists to establish factories in States where the law gives 
deficient protection to children or makes the requirements of health 
and safety less stringent. In those fields of action wherein neither Con¬ 
gress nor the States enjoy complete authority, the want of a power to 
deal with the whole of a subject makes legislation halting and imperfect. 

(3) The regulation of railroads, as respects both their methods of 
operation and their rates, by one law and one administrative authority 
seems needed not only in the interest of traders and passengers but in 
that of the employees, and indeed of the railroad owners themselves, 
who are harassed by the varying (and sometimes vexatious) legislation 



chap, xxx MERITS OF THE FEDERAL SYSTEM 


359 


of different States superadded to the legislation of Congress controlling 
interstate commerce. Whether all railroads should be subjected to 
Federal legislation, or whether such legislation should be extended only 
to cover the whole working of railroads doing extra-state business or 
operating in more than one State, is a further question as to which 
opinion is divided. There has grown up strong demand for the sup¬ 
pression of all monopolies by general measures. There is a desire to 
see more control and a uniform control exerted by national law over 
large industrial and trading corporations. All these convergent wishes 
and demands represent a tendency which has not as yet found in 
Federal law and Federal administration a concrete expression propor¬ 
tionate to its strength. The mind of the nation is now awake to these 
needs and desires, but it is reluctant to depart from the existing boun¬ 
daries of Federal action and State action. Thus it continues to 
wrestle with the problem, the difficulties of which He not merely in the 
solution to be attained but in the manner of attaining the solution, 
because there are objections to both the courses which might have to 
be taken, the course of amending the Constitution and the course of 
encouraging the Federal courts to effect by interpretation alterations 
so large as are desired. No one desires to weaken confidence in the 
fundamental instrument. 

Whatever changes may come, and whether they come sooner or 
later, it is clear that the nation feels itself more than ever before to be 
one for all commercial and social purposes, every part of it more inter¬ 
laced with and dependent on all the other parts than at any previous 
epoch of its history. This feeling, due to influences which have been 
steadily gaining ground, cannot but have its effect upon political in¬ 
stitutions. It does not necessarily portend any menace to the States. 
Every one feels that they are necessary and must be maintained. But 
it presages some further extensions of Federal authority. 

One new fact which was expected to exalt the majesty and strengthen 
the power of the National Government has so far made little if any 
difference — I mean the acquisition of transmarine possessions and 
particularly of the Philippine Islands, which are immediately depend¬ 
ent upon that Government, and bring it into relation with new foreign 
problems. These conquests are too relatively small and too distant to 
occupy the thoughts of the people. The lustre of the National 
Government has not been visibly enhanced by its control of the new 
possessions, and still less has its character as a constitutional govern¬ 
ment suffered from the fact that it exercises a larger sway than is 
permitted to it at home. It is not through the so-called “imperial 
position” which the Government of the United States now holds, nor 
through the place it has assumed as a world power, but rather 
through the internal causes above referred to, that the forces which 
make for the unification of the country seem to be working. Yet 
in one respect the war with Spain did contribute to the strengthen¬ 
ing of a sentiment of unity, for it obliterated the relics of sectional 
antagonism which had lingered on from the days of the Civil War. 
Soldiers from the North and soldiers from the South fought side by 
side in Cuba under one flag. 



CHAPTER XXXI 


GROWTH AND DEVELOPMENT OF THE CONSTITUTION 

There is another point of view from which we have still to 
consider the Constitution. It is not only a fundamental law, 
but an unchangeable law, unchangeable, that is to say, by the 
national legislature, and changeable even by the people only 
through a slow and difficult process. How can a country whose 
very name suggests to us movement and progress be governed 
by a system and under an instrument which remains the same 
from year to year and from century to century ? 

By the “Constitution” of a state or a nation we mean those 
of its rules or laws which determine the form of its govern¬ 
ment, and the respective rights and duties of the government 
towards the citizens and of the citizens towards the govern¬ 
ment. These rules, or the more important among them, may 
be contained in one document, such as the Swiss or the Bel¬ 
gian Constitution, or may be scattered through a multitude of 
statutes and reports of judicial decisions, as is the case with 
regard to what men call the English Constitution. This is a 
distinction of practical consequence. But a still more impor¬ 
tant difference exists in the fact that in some countries the 
rules or laws which make up the Constitution can be made and 
changed by the ordinary legislature just like any other laws, 
while in other countries such rules are placed above and out 
of the reach of the legislature, having been enacted and being 
changeable only by some superior authority. In countries of 
the former class the so-called Constitution is nothing more 
than the aggregate of those laws — including of course cus¬ 
toms and judicial decisions — which have a political character ; 
and this description is too vague to be scientifically useful, for 
no three jurists would agree as to which laws ought to be 
deemed political. In such countries there is nothing either in 
the form of what are commonly called constitutional laws, or 
in the source from which they emanate, or in the degree of 

360 


chap, xxxi DEVELOPMENT OF THE CONSTITUTION 361 


their authority, to mark them off from other laws. The Con¬ 
stitution of England is constantly changing, for as the legisla¬ 
ture, in the ordinary exercise of its powers, frequently passes 
enactments which affect the methods of government and the 
political rights of the citizens, there is no certainty that what 
is called the Constitution will stand the same at the end of a 
given session of Parliament as it stood at the beginning . 1 A 
constitution of this kind, capable at any moment of being bent 
or turned, expanded or contracted, may properly be called a 
Flexible Constitution. 

In countries of the other class the laws and rules which 
prescribe the nature, powers, and functions of the government 
are contained in a document or documents emanating from an 
authority superior to that of the legislature. This authority 
may be a monarch who has odroye a charter alterable by him¬ 
self only. Or it may be the whole people voting at the polls; 
or it may be a special assembly, or combination of assemblies, 
appointed ad hoc. In any case we find in such countries a law 
or group of laws distinguished from other laws not merely by 
the character of their contents, but by the source whence they 
spring and by the force they exert, a force which overrides and 
breaks all conflicting enactments passed by the ordinary legis¬ 
lature. Where the Constitution consists of such a law or laws, 
I propose to call it a Rigid Constitution, i.e. one which cannot 

1 The first statesman who remarked this seems to have been James Wilson, 
who said in 1787, “The idea of a constitution limiting and superintending the 
operations of legislative authority, seems not to have been accurately under¬ 
stood in Britain. There are at least no traces of practice conformable to such 
a principle. The British Constitution is just what the British Parliament 
pleases. When the Parliament transferred legislative authority to Henry VIII., 
the act transferring could not, in the strict acceptation of the term, be called 
unconstitutional. To control the powers and conduct of the legislature by an 
overruling constitution was an improvement in the science and practice of 
government reserved to the American States.” — Elliot’s Debates, ii. 432. 
Paley had made the observation relating to England in his Moral Philosophy , 
published shortly before 1787. Read and consider Oliver Cromwell’s Instru¬ 
ment, called “The Government of the Commonwealth of England, Scotland, 
and Ireland,” printed in the Parliamentary History, vol. iii. p. 1417. It was 
provided by this instrument that statutes passed in Parliament should take 
effect, even if not assented to by the Lord Protector, but only if they were 
agreeable to the articles of the instrument, which would therefore appear to 
have been a genuine Rigid Constitution within the terms of the definition given 
in the text. Some of the provisions of the articles are so minute that they can 
hardly have been intended to be placed above change by Parliament; but 
Cromwell seems from the remarkable speech which he delivered on 16th Decem¬ 
ber 1653, in promulgating the Instrument, to have conceived that what he 
called the Fundamentals should be unchangeable. 



362 


THE NATIONAL GOVERNMENT 


PART 1 


be bent or twisted by the action of the legislature, but stands 
stiff and solid, opposing a stubborn resistance to the attacks 
of any majority who may desire to transgress or evade its 
^provisions. As the English Constitution is the best modern 
instance of the flexible type, so is the American of the rigid 
type. 

It will at once be asked, How can any constitution be truly 
rigid? Growth and decay are the necessary conditions of the 
life of institutions as well as of individual organisms. One 
constitution may be altered less frequently or easily than 
another, but an absolutely unchangeable constitution is an 
impossibility . 1 

The question is pertinent; the suggestion is true. No con¬ 
stitution can be made to stand unsusceptible of change, because 
if it were, it would cease to be suitable to the conditions amid 
which it has to work, that is, to the actual forces which sway 
politics. And being unsuitable, it would be weak, not rooted in 
the nature of the State and in the respect of the citizens for 
whom it exists; and being weak, it would presently be over¬ 
thrown. If therefore we find a Rigid Constitution tenacious of 
life, if we find it enjoying, as Virgil says of the gods, a fresh 
and green old age, we may be sure that it has not stood wholly 
changeless, but has been so modified as to have adapted it¬ 
self to the always altering circumstances that have grown up 
round it. Most of all must this be true of a new country 
where men and circumstances change faster than in Europe, 
and where, owing to the equality of conditions, the leaven of 
new ideas works more thoroughly upon the whole lump. 

We must therefore be prepared to expect that the American 
Constitution will, when its present condition is compared with 

1 The constitutions of the ancient world were all or nearly all Flexible, be¬ 
cause the ancient republics were governed by primary assemblies, all whose 
laws were of equal validity. By far the most interesting and instructive ex¬ 
ample is the Constitution of Rome. It presents some striking resemblances 
to the Constitution of England — both left many points undetermined, both 
relied largely upon semi-legal usages and understandings. (As to the characteris¬ 
tics of Rigid and Flexible Constitutions, remarks may be found in my book 
entitled Studies in History and Jurisprudence, already referred to.) 

However, one finds here and there in Greek constitutions provisions intended 
to secure certain laws from change. At Athens, for instance, there was a dis¬ 
tinction between Laws (vbyoi) which required the approval of a committee 
called the Nomothetae, and Decrees yard) passed by the Assembly alone, 

and any person proposing a decree inconsistent with a law was liable to an 
action (*y pacpT] irapavdyuv) for having, so to speak, led the people into illegality. 
His conviction carried with it a declaration of the invalidity of the decree. 



chap, xxxi DEVELOPMENT OF THE CONSTITUTION 363 


its fire-new condition in 1789, prove to have felt the hand of 
time and change. 

Historical inquiry verifies this expectation. The Constitu¬ 
tion of the United States, rigid though it be, has changed, has 
developed. It has developed in three ways to which I devote 
the three following chapters. 

It has been changed by Amendment. Certain provisions 
have been struck out of the original document of 1787-88; 
certain other, and more numerous, provisions have been added. 
This method needs little explanation, because it is open and 
direct. It resembles the method in which laws are changed 
in England, the difference being that whereas in England 
statutes are changed by the legislature alone, here in the United 
States the fundamental law is changed in a more complex 
fashion by the joint action of Congress and the States. 

It has been developed by Interpretation, that is, by the 
unfolding of the meaning implicitly contained in its necessarily 
brief terms; or by the extension of its provisions to cases 
which they do not directly contemplate, but which their gen¬ 
eral spirit must be deemed to cover. 

It has been developed by Usage, that is, by the establish¬ 
ment of rules not inconsistent with its express provisions, but 
giving them a character, effect, and direction which they would 
not have if they stood alone, and by which their working is 
materially modified. These rules are sometimes embodied 
in statutes passed by Congress and repealed by Congress. 
Sometimes they remain in the stage of a mere convention 
or understanding which has no legal authority, but which 
everybody knows and accepts. Whatever their form, they 
must not conflict with the letter of the Constitution, for if 
they do conflict with it, they will be deemed invalid whenever 
a question involving them comes before a court of law. 

It may be observed that of these three modes of change, the 
first is the most obvious, direct, and effective, but also the 
most difficult to apply, because it needs an agreement of many 
independent bodies which is rarely attainable. The second 
mode is less potent in its working, because an interpretation 
put on a provision may be recalled or modified by the same 
authority, viz. the courts of law (and especially the Supreme 
Federal Court), which has delivered it. But while a particular 
interpretation stands, it is as strong as the Constitution itself, 



364 


THE NATIONAL GOVERNMENT 


PART 1 


being indeed incorporated therewith, and therefore stronger than 
anything which does not issue from the same ultimate source 
of power, the will of the people. The weakest, though the 
easiest and most frequent method, is the third. For legisla¬ 
tion and custom are altogether subordinate to the Constitution, 
and can take effect only where the letter of the Constitution is 
silent, and where no authorized interpretation has extended the 
letter to an unspecified case. But they work readily, quickly, 
freely; and the developments to be ascribed to them are there¬ 
fore as much larger in quantity than those due to the two 
other methods as they are inferior in weight and permanence. 

We shall perceive after examining these three sources of 
change not only that the Constitution as it now stands owes 
much to them, but that they are likely to modify it still further 
as time goes on. We shall find that, rigid as it is, it suffers 
constant qualification and deflection, and that while its words 
continue in the main the same, it has come to mean something 
different to the men of 1910 from what it meant to those of 
1810, when it had been at work for more than twenty years, or 
even to those of 1860, when the fires of protracted controversy 
might be thought to have thrown a glare of light into every 
corner of its darkest chamber. 



CHAPTER XXXII 


THE AMENDMENT OF THE CONSTITUTION 

The men who sat in the Convention of 1787 were not san¬ 
guine enough, like some of the legislating sages of antiquity, 
or like such imperial codifiers as the Emperor Justinian, to 
suppose that their work could stand unaltered for all time to 
come. They provided (Art. v.) that “ Congress, whenever 
two-thirds of both houses shall deem it necessary, shall pro¬ 
pose amendments to this Constitution, or on the application 
of the legislatures of two-thirds of the several States, shall call 
a convention for proposing amendments, which, in either case, 
shall be valid to all intents and purposes as part of this Consti¬ 
tution when ratified by the legislatures of three-fourths of the 
several States, or by conventions in three-fourths thereof, as 
the one or the other mode may be prescribed by Congress.” 

There are therefore two methods of framing and proposing 
amendments. 

(A) Congress may itself, by a two-thirds vote in each house, 
prepare and propose amendments. 

(B) The legislatures of two-thirds of the States may require 
Congress to summon a Constitutional Convention. Congress 
shall thereupon do so, having no option to refuse; and the Con¬ 
vention when called shall draft and submit amendments. No 
provision is made as to the election and composition of the 
Convention, matters which would therefore appear to be left to 
the discretion of Congress. 

There are also two methods of enacting amendments framed 
and proposed in either of the foregoing ways. It is left to 
Congress to prescribe one or other method as Congress may 
think fit. 

(X) The legislatures of three-fourths of the States may ratify 
any amendments submitted to them. 

365 


366 


THE NATIONAL GOVERNMENT 


PART I 


(Y) Conventions may be called in the several States, and 
three-fourths of these conventions may ratify. 1 

On all the occasions on which the amending power has been 
exercised, method A has been employed for proposing and 
method X for ratifying — i.e. no drafting conventions of the 
whole Union or ratifying conventions in the several States have 
ever been summoned. The preference of the action of Con¬ 
gress and the State legislatures may be ascribed to the fact that 
it has never been desired to remodel the whole Constitution, 
but only to make changes or additions on special points. More¬ 
over, the procedure by National and State conventions might 
be slower, and would involve controversy over the method 
of electing those bodies. The consent of the President is 
not required to a constitutional amendment. 2 A two-thirds 
majority in Congress can override his veto of a Bill, and at 
least that majority is needed to bring a constitutional amend¬ 
ment before the people. 

There is only one provision of the Constitution which cannot 
be changed by this process. It is that which secures to each 
and every State equal representation in one branch of the 
legislature. “No State without its consent shall be deprived 
of its equal suffrage in the Senate” (Art. v.). It will be ob¬ 
served that this provision does not require unanimity on the 
part of the States to a change diminishing or extinguishing 
State representation in the Senate, but merely gives any par¬ 
ticular State proposed to be affected an absolute veto on the 
proposal. If a State were to consent to surrender its rights, 
and three-fourths of the whole number to concur, the resistance 
of the remaining fourth would not prevent the amendment from 
taking effect. 

Following President Lincoln, Americans speak of the Union 
as indestructible ; and the expression, “An indestructible Union 
of indestructible States,” has been used by the Supreme court 
in a famous case. 3 But looking at the constitution simply as 
a legal document, one finds nothing in it to prevent the adop¬ 
tion of an amendment providing a method for dissolving the 

1 No time is fixed within which the ratification must take place, a somewhat 
inconvenient omission. 

2 The point was decided by the Supreme court in 1794 in the case of Hollings¬ 
worth v. State of Vermont (3 Dali. 378) ; and the Senate came to the same con¬ 
clusion in 1865. See Jameson on Constitutional Conventions, § 560. 

3 Texas v. White, see ante, p. 322. 



chap, xxxii AMENDMENT OF THE CONSTITUTION 367 


existing Federal tie, whereupon such method would be applied 
so as to form new unions, or permit each State to become an 
absolutely sovereign and independent commonwealth. The 
power of the people of the United States appears competent to 
effect this, should it ever be desired, in a perfectly legal way, 
just as the British Parliament is legally competent to re¬ 
divide Great Britain into the sixteen or eighteen independent 
kingdoms which existed within the island in the eighth cen¬ 
tury. 

The amendments made by the above process (A+X) to the 
Constitution have been in all seventeen in number. These have 
been made on five occasions, and fall into five groups, two of 
which consist of one amendment each. The first group, in¬ 
cluding ten amendments made immediately after the adoption 
of the Constitution, ought to be regarded as a supplement or 
postscript to it, rather than as changing it. They constitute 
what the Americans, following the English precedent, call a Bill 
of Rights, securing the individual citizen and the States against 
the encroachments of Federal power. 1 The second and third 
groups, if a single amendment can be properly called a group 
(viz. amendments xi. and xii.), are corrections of minor defects 
which had disclosed themselves in the working of the Constitu¬ 
tion. 2 The fourth group marked a political crisis and regis¬ 
tered a political victory. It comprises three amendments 
(xiii. xiv. xv.) which forbid slavery, define citizenship, en¬ 
deavour to secure the suffrage of citizens against attempts by 
States to discriminate to the injury of particular classes, and 
extend Federal protection to those citizens who may suffer 
from the operation of certain kinds of unjust State laws. These 
three amendments are the outcome of the War of Secession, 
and were needed in order to confirm and secure for the future 
its results. The requisite majority of States was obtained 
under conditions altogether abnormal, some of the lately 
conquered States ratifying while actually controlled by the 
northern armies, others as the price which they were obliged 
to pay for the re-admission to Congress of their senators and 

1 These ten amendments were proposed by the first Congress, having been 
framed by it out of 103 amendments suggested by various States, and were 
ratified by all the States but three. They took effect in December 1791. 

2 The eleventh amendment negatived a construction which the Supreme 
court had put upon its own judicial powers (see above, p. 232) ; the twelfth 
corrected a fault in the method of choosing the President. 




368 


THE NATIONAL GOVERNMENT 


PART 1 


representatives. 1 The details belong to history: all we need 
here note is that these deep-reaching, but under the circum¬ 
stances perhaps unavoidable, changes were carried through not 
by the free will of the peoples of three-fourths of the States, 
but under the pressure of a majority which had triumphed in 
a great war, and used its command of the National government 
and military strength of the Union to effect purposes deemed 
indispensable to the reconstruction of the Federal system. 2 

The two amendments of 1913 may be called a fifth group, for 
though they relate to quite different matters, both are the prod¬ 
ucts of what may be described as the “radical tendencies” 
which had grown powerful in the early years of the present 
century. One of these amendments extended and defined 
the power of Congress to impose an income tax. The other 
took the election of Senators away from the State legislatures 
to vest it in the peoples of the States, a concession to the prin¬ 
ciple of direct popular sovereignty as well as an expression of 
distrust in legislative bodies. The former of these two met with 
considerable opposition in the older States of the East, where 
capitalistic influences have power; the latter was readily ac¬ 
cepted in every State. 3 

1 The thirteenth amendment was proposed by Congress in February 1865, 
ratified and declared in force December 1865; the fourteenth was proposed by 
Congress June 1866, ratified and declared in force July 1868 ; the fifteenth was 
proposed by Congress February 1869, ratified and declared in force March 
1870. The fourteenth amendment had given the States a strong motive for 
enfranchising the negroes by cutting down the representation in Congress of 
any State which excluded male inhabitants (being citizens of the United States) 
from the suffrage ; the fifteenth went further and forbade ‘ ‘ race, colour, or pre¬ 
vious condition of servitude” to be made a ground of exclusion. 

The effect of these three amendments was fully considered by the Supreme 
court (in 1872) in the so-called Slaughter-house Cases (16 Wall. 82), the effect 
of which is thus stated by Mr. Justice Miller: ‘‘With the exception of the 
specific provisions in the three amendments for the protection of the personal 
rights of the citizens and people of the United States, and the necessary re¬ 
strictions -upon the power of the States for that purpose, with the additions 
to the power of the general government to enforce those provisions, no sub¬ 
stantial change has been made in the relations of the State governments to 
the Federal government.” — Address delivered before the University of Michi¬ 
gan, 1887. 

The provision of the fourteenth amendment which enables the representa¬ 
tion of a State to be reduced has not so far been applied. As to the practical 
results of the fifteenth amendment and the present state of the suffrage in the 
former Slave States, see Chapters XCIII.-XCV. post. 

2 But though military coercion influenced the adoption of the thirteenth 

amendment, while political coercion bore a large part in securing the adoption 
of the others, it must be remembered that some changes in the Constitution 
were an absolutely necessary corollary to the war which had just ended. 



chap, xxxii AMENDMENT OP THE CONSTITUTION 369 


Many amendments to the Constitution have been at various 
times suggested to Congress by Presidents, or brought forward 
in Congress by members, but very few of these have ever ob¬ 
tained the requisite two-thirds vote of both Houses. In 1789, 
however, and again in 1807, amendments were passed by Con¬ 
gress and submitted to the States for which the requisite ma¬ 
jority of three-fourths of the States was not obtained; and 
in February and March 1861 an amendment forbidding the 
Constitution to be ever so amended as to authorize Congress 
to interfere with the “domestic institutions/’ including slavery, 
of any State, was passed in both Houses, but never submitted to 
the States, because war broke out immediately afterwards. It 
would doubtless, had peace been preserved, have failed to ob¬ 
tain the acceptance of three-fourths of the States, and its effect 
could only have been to require those who might thereafter 
propose to amend the Constitution so as to deal with slavery, to 
propose also the repeal of this particular amendment itself. 1 

The moral of these facts is not far to seek. Although it 
has long been the habit of the Americans to talk of their Con¬ 
stitution with almost superstitious reverence, there have often 
been times when leading statesmen, perhaps even political 
parties, would have materially altered it if they could have 
done so. There have, moreover, been some alterations sug¬ 
gested in it, which the impartial good sense of the wise would 
have approved, but which have never been submitted to the 
States, because it was known they could not be carried by 
the requisite majority. 2 If, therefore, comparatively little use 

1 The Greek republics of antiquity sometimes placed some particular law 
under a special sanction by denouncing the penalty of death on any one who 
should propose to repeal it. In such cases, the man who intended to repeal the 
law so sanctioned of course began by proposing the repeal of the law which 
imposed the penalty. So it would have been in this case: so it must always 
be. No sovereign body can limit its own powers. The British Parliament 
seems to have attempted to bind itself by providing in the Act of Union with 
Ireland (39 and 40 George III., c. 67) that the maintenance of the Protestant 
Episcopal Church as an Established Church in Ireland should be deemed an 
essential and fundamental part of the Union.” That church was, however, dis¬ 
established in 1869 with as much ease as though this provision had never existed. 

2 In the Forty-ninth Congress (1884-86) no fewer than forty-seven proposi¬ 
tions were introduced for the amendment of the Constitution, some of them of 
a sweeping, several of a rather complex, nature. (Some of these covered the 
same ground, so the total number of alterations proposed was less than forty- 
seven.) None seems to have been voted on by Congress; and only five or six 
even deserved serious consideration. One at least, that enabling the President 
to veto items in an appropriation bill, would have effected a great improve- 

2 B 



370 


THE NATIONAL GOVERNMENT 


PART I 


has been made of the provisions for amendment, this has been 
due, not solely to the excellence of the original instrument, 
but also to the difficulties which surround the process of change. 
Alterations, though seldom large alterations, have been needed, 
to cure admitted faults or to supply dangerous omissions, but 
the process has been so difficult that it has been successfully 
applied only in three kinds of cases, (a) matters of minor con¬ 
sequence involving no party interests (Amendments xi., xii., 
and xvi.), (6) in the course of a revolutionary movement which 
had dislocated the Union itself (Amendments xiii., xiv., xv.), and 
(c) matters in which there existed a general sentiment common 
to both parties desiring alteration (Amendments i. to x. and 
Amendment xvii.). 

The passing of the two Amendments of 1913 may suggest that 
the Constitution is more likely to undergo change in the near 
future than had seemed probable twenty years ago. Still it 
is worth while to enquire why the regular procedure for amend¬ 
ment had therefore proved in practice so hard to apply. 

Partly, of course, owing to the inherent disputatiousness and 
perversity (what the Americans call “ cussedness ”) of bodies 
of men. It is difficult to get two-thirds of two assemblies (the 
Houses of Congress) and three-fourths of forty-eight com¬ 
monwealths, each of which acts by two assemblies, for the 
State legislatures are all double-chambered, to agree to the 
same practical proposition. Except under the pressure of 
urgent troubles, such as were those which procured the accept¬ 
ance of the Constitution itself in 1788, few persons or bodies 
will consent to forego objections of detail, perhaps in them¬ 
selves reasonable, for the mere sake of agreeing to what others 

ment. I find among them the following proposals: To prohibit the sale of 
alcoholic liquors, to forbid polygamy, to confer the suffrage on women, to vest 
the election of the President directly in the people, to elect representatives 
for three instead of two years, to choose senators by popular election, to em¬ 
power Congress to limit the hours of labour, to empower Congress to pass 
uniform laws regarding marriage and divorce, to enable the people to elect 
certain Federal officers, to forbid Congress to pass any local private or special 
enactment, to forbid Congress to direct the payment of claims legally barred 
by lapse of time, to forbid the States to hire out the labour of prisoners. 

In the sixtieth Congress thirty-six such propositions were introduced, includ¬ 
ing proposals for the election of judges, for the election of postmasters, for 
uniform laws regarding divorce, for the repeal of the fourteenth and of the 
fifteenth amendments to the Constitution, for altering the term of the presi¬ 
dential office, for altering the succession to that office, for an initiative and 
referendum, for acknowledging the Deity in the Federal Constitution, for alter¬ 
ing the method of electing United States Senators. 




chap, xxxii AMENDMENT OP THE CONSTITUTION 371 


have accepted. They want to have what seems to themselves 
the very best, instead of a second best suggested by some one 
else. Now, bodies enjoying so much legal independence as do 
the legislatures of the States, far from being disposed to defer 
to Congress or to one another, are more jealous, more sus¬ 
picious, more vain and opinionated, than so many individuals. 
Rarely will anything but an active party spirit, seeking either 
a common party object or individual gain to flow from party 
success, make them work together. 

If an amendment comes to the legislatures recommended 
by the general voice of their party, they will be quick to adopt 
it. But in that case it may probably encounter the hostility 
of the opposite party, and parties are in many States 
pretty evenly balanced. It is seldom that a two-thirds ma¬ 
jority in either House of Congress can be secured on a party 
issue; and of course such majorities in both Houses, and a 
three-fourths majority of State legislatures on a party issue, 
are still less probable. Now, in a country pervaded by the 
spirit of party, most questions either are at starting, or soon 
become, controversial. 1 A change in the Constitution, however 
useful its ultimate consequences, is likely to be for the mo¬ 
ment deemed more advantageous to one party than to the 
other, and this is enough to make the other party oppose it. 
The mere fact that a proposal comes from one side, rouses the 
suspicion of the other. There is always that dilemma of which 
England has so often felt the evil consequences. If a meas¬ 
ure of reform is pressing, it becomes matter of party con¬ 
tention, and excites passion. If it is not pressing, neither 
party, having other and nearer aims, cares to take it up and 
push it through. In America, a party amendment to the Con¬ 
stitution can very seldom be carried. Most non-party amend¬ 
ments fall into the category of those things which, because they 
are everybody’s business, are the business of nobody. 

It is evident when one considers the nature of a Rigid or 
Supreme constitution, that some method of altering it so as to 
make it conform to altered facts and ideas is indispensable. A 
European critic may remark that the American method has 
failed to answer the expectations formed of it. The belief, he 

1 Nevertheless neither the sixteenth nor the seventeenth amendment had a 
party character, though the former was more generally acceptable to one party 
than to the other. 



372 


THE NATIONAL GOVERNMENT 


PART I 


will say, of its authors was that while nothing less than a 
general agreement would justify alteration, that agreement 
would exist when omissions impeding its working were dis¬ 
covered. But this has not come to pass. There have been 
long and fierce controversies over the construction of sev¬ 
eral points in the Constitution, over the right of Congress 
to spend money on internal improvements, to charter a na¬ 
tional bank, to impose a protective tariff, above all, over the 
treatment of slavery in the Territories. But the method of 
amendment was not applied to any of these questions, be¬ 
cause no general agreement could be reached upon them, or 
indeed upon any but secondary matters. So the struggle 
over the interpretation of a document which it was found 
impossible to amend, passed from the law courts to the battle¬ 
field. Americans reply to such criticisms by observing that 
the power of amending the Constitution is one which cannot 
prudently be employed to conclude current political contro¬ 
versies, that if it were so used no constitution could be either 
rigid or reasonably permanent, that some latitude of construc¬ 
tion is desirable, and that in the above-mentioned cases amend¬ 
ments excluding absolutely one or other of the constructions 
contended for would either have tied down the legislature too 
tightly or have hastened a probably inevitable conflict. And 
they now (1914) add that the ease and speed with which the 
Seventeenth Amendment was passed that when there exists a 
widespread popular wish for any particular change, it can be 
promptly gratified. 

Ought the process of change to be made easier ? say by 
requiring only a bare majority in Congress, and a two-thirds 
majority of States? American statesmen think not. A swift 
and easy method would not only weaken the sense of security 
which the rigid Constitution now gives, but would increase the 
troubles of current politics by stimulating a majority in Con¬ 
gress to frequently submit amendments to the States. The 
habit of mending would turn into the habit of tinkering. There 
would be too little distinction between changes in the ordinary 
statute law, which require the agreement of majorities in the 
two Houses and the President, and changes in the more solemnly 
enacted fundamental law. And the rights of the States, upon 
which congressional legislation cannot now directly encroach, 
would be endangered, The French scheme, under which an ab- 



chap, xxxii AMENDMENT OF THE CONSTITUTION 373 


solute majority of the two Chambers, sitting together, can amend 
the Constitution; or even the Swiss scheme, under which a bare 
majority of the voting citizens, coupled with a majority of the 
Cantons, can ratify constitutional changes drafted by the Cham¬ 
bers, in pursuance of a previous popular vote for the revision of 
the Constitution, 1 is considered by the Americans dangerously lax. 
The idea reigns that solidity and security are the most vital 
attributes of a fundamental law. 

From this there has followed another interesting result. 
Since modifications or developments are often needed, and since 
they can rarely be made by amendment, some other way of 
making them must be found. The ingenuity of lawyers has 
discovered one method in interpretation, while the dexterity of 
politicians has invented a variety of devices whereby legislation 
may extend, or usage may modify, the express provisions of the 
apparently immovable and inflexible instrument. 

1 See the Swiss Federal Constitution, Arts. 118-121. 



CHAPTER XXXIII 


THE INTERPRETATION OF THE CONSTITUTION 

The Constitution of England is contained in hundreds of 
volumes of statutes and reported cases; the Constitution of 
the United States (including the amendments) may be read 
through aloud in twenty-three minutes. It is about half as 
long as St. Paul's first Epistle to the Corinthians, and only one- 
fortieth part as long as the Irish Land Act of 1881. History 
knows few instruments which in so few words lay down equally 
momentous rules on a vast range of matters of the highest im¬ 
portance and complexity. The Convention of 1787 were well 
advised in making their draft short, because it was essential 
that the people should comprehend it, because fresh differences 
of view would have emerged the further they had gone into 
details, and because the more one specifies, the more one has to 
specify and to attempt the impossible task of providing before¬ 
hand for all contingencies. These sages were therefore con¬ 
tent to lay down a few general rules and principles, leaving 
some details to be filled in by congressional legislation, and 
foreseeing that for others it would be necessary to trust to 
interpretation. 

It is plain that the shorter a law is, the more general must 
its language be, and the greater therefore the need for interpre¬ 
tation. So too the greater the range of a law, and the more 
numerous and serious the cases which it governs, the more 
frequently will its meaning be canvassed. There have been 
statutes dealing with private law, such as the Lex Aquilia at 
Rome and the Statute of Frauds in England, on which many 
volumes of commentaries have been written, and thousands of 
juristic and judicial constructions placed. Much more then 
must we expect to find great public and constitutional enact¬ 
ments subjected to the closest scrutiny in order to discover 
every shade of meaning which their words can be made to bear. 
Probably no writing except the New Testament, the Koran, 

374 


chap, xxxiii INTERPRETATION OF CONSTITUTION 375 


the Pentateuch, and the Digest of the Emperor Justinian 
has employed so much ingenuity and labour as the American 
Constitution, in sifting, weighing, comparing, illustrating, twist¬ 
ing, and torturing its text. It resembles theological writ¬ 
ings, in this, that both, while taken to be immutable guides, 
have to be adapted to a constantly changing world, the one to 
political conditions which vary from year to year and never re¬ 
turn to their former state, the other to new phases of thought 
and emotion, new beliefs in the realms of physical and ethical 
philosophy. There must, therefore, be a development in con¬ 
stitutional formulas, just as there is in theological. It will 
come, it cannot be averted, for it comes in virtue of a law of 
nature : all that men can do is to shut their eyes to it, and 
conceal the reality of change under the continued use of time- 
honoured phrases, trying to persuade themselves that these 
phrases mean the same thing to their minds to-day as they 
meant generations or centuries ago. As a great theologian 
says, “In a higher world it is otherwise ; but here below to live 
is to change, and. to be perfect is to have changed often.” 1 

The Constitution of the United States is so concise and so 
general in its terms, that even had America been as slowly 
moving a country as China, many questions must have arisen 
on the interpretation of the fundamental law which would have 
modified its aspect. But America has been the most swiftly 
expanding of all countries. Hence the questions that have 
presented themselves have often related to matters which the 
framers of the Constitution could not have contemplated. 
Wiser than Justinian before them or Napoleon after them, they 
foresaw that their work would need to be elucidated by judicial 
commentary. But they were far from conj ecturing the enormous 
strain to which some of their expressions would be subjected 
in the effort to apply them to new facts. 

I must not venture on any general account of the interpreta¬ 
tion of the Constitution, nor attempt to set forth the rules of 
construction laid down by judges and commentators, for this 
is a vast matter and a matter for law books. All that this 
chapter has to do is to indicate, very generally, in what way 
and with what results the Constitution has been expanded, de¬ 
veloped, modified, by interpretation; and with that view there 
are three points that chiefly need discussion : (1) the authori- 

1 Newman, Essay on Development, p. 39. 



376 


THE NATIONAL GOVERNMENT 


PART 1 


ties entitled to interpret the Constitution, (2) the main prin¬ 
ciples followed in determining whether or no the Constitution 
has granted certain powers, (3) the checks on possible abuses 
of the interpreting power. 

I. To whom does it belong to interpret the Constitution? 
Any question arising in a legal proceeding as to the meaning 
and application of this fundamental law will evidently be 
settled by the courts of law. Every court is equally bound to 
pronounce and competent to pronounce on such questions, a 
State court no less than a Federal court; 1 but as all the more 
important questions are carried by appeal to the supreme 
Federal court, it is practically that court whose opinion finally 
determines them. 

Where the Federal courts have declared the meaning of a 
law, every one ought to accept and guide himself by their 
deliverance. But there are always questions of construction 
which have not been settled by the courts, some because they 
have not happened to arise in a law-suit, others because they 
are such as can scarcely arise in a law-suit. As regards such 
points, every authority, Federal or State, as well as every citi¬ 
zen, must be guided by the best view he or they can form of 
the true intent and meaning of the Constitution, taking, of 
course, the risk that this view may turn out to be-wrong. 

There are also points of construction which every court, 
following a well-established practice, will refuse to decide be¬ 
cause they are deemed to be of “a purely political nature,” a 
vague description, but one which could be made more specific 
only by an enumeration of the cases which have settled the 
practice. These points are accordingly left to the discretion 
of the executive and legislative powers, each of which forms 
its view as to the matters falling within its sphere, and in acting 
in that view is entitled to the obedience of the citizens and of 
the States also. 

It is therefore an error to suppose that the judiciary is the 
only interpreter of the Constitution, for a certain field remains 
open to the other authorities of the government, whose views 
need not coincide, so that a dispute between those authorities, 
although turning on the meaning of the Constitution, may be 
incapable of being settled by any legal proceeding. This 
causes no great confusion, because the decision, whether of the 

1 See Chapter XXIV. ante. 



chap, xxxiii INTERPRETATION OF CONSTITUTION 377 


political or the judicial authority, is conclusive so far as regards 
the particular controversy or matter passed upon. 

The above is the doctrine now generally accepted in America. 
But at one time the Presidents claimed the much wider right 
of being, except in questions of pure private law, generally and 
prima jade entitled to interpret the Constitution for themselves, 
and to act on their own interpretation, even when it ran counter 
to that delivered by the Supreme court. Thus Jefferson de¬ 
nounced the doctrine laid down in the famous judgment of 
Chief'Justice Marshall in the case of Marbury v. Madison ; 1 thus 
Jackson insisted that the Supreme court was mistaken in holding 
that Congress had power to charter the United States bank, and 
that he, knowing better than the court did what the Consti¬ 
tution meant to permit, was entitled to attack the bank as an 
illegal institution, and to veto a bill proposing to re-charter it . 2 
Majorities in Congress have more than once claimed for them¬ 
selves the same independence. But of late years both the 
executive and the legislature have practically receded from the 
position which the language formerly used seemed to assert; 
while, on the other hand, the judiciary, by their tendency during 
the whole course of their history to support every exercise of 
power which they did not deem plainly unconstitutional, have 
left a wide field to those authorities. If the latter have not used 
this freedom to stretch the Constitution even more than they have 
done, it is not solely the courts of law, but also public opinion and 
their own professional associations (most presidents, ministers, 
and congressional leaders having been lawyers) that have checked 
them. 

II. The Constitution has been expanded by construction in 
two ways. Powers have been exercised, sometimes by the 

1 As the court dismissed upon another point in the case the proceedings 
against Mr. Secretary Madison, the question whether Marshall was right did 
not arise in a practical form. 

2 There was, however, nothing unconstitutional in the course which Jackson 
actually took in withdrawing the deposits from the United States Bank and in 
vetoing the bill for a re-charter. It is still generally admitted that a President 
has the right in considering a measure coming to him from Congress to form 
his own judgment, not only as to its expediency but as to its conformability to 
the Constitution. Judge Cooley observes to me i If Jackson sincerely believed 
that the Constitution had been violated in the first and second charter, he was 
certainly not bound, when a third was proposed, to surrender his opinion in 
obedience to precedent. The question of approving a new charter was politi¬ 
cal ; and he was entirely within the line of duty in refusing it for any reasons 
which, to his own mind, seemed sufficient.” 



378 


THE NATIONAL GOVERNMENT 


PART I 


President, more often by the legislature in passing statutes, 
and the question has arisen whether the powers so exercised 
were rightfully exercised, i.e. were really contained in the 
Constitution. When the question was resolved in the affirma¬ 
tive by the court, the power has been henceforth recognized as 
a part of the Constitution, although, of course, liable to be 
subsequently denied by a reversal of the decision which estab¬ 
lished it. This is one way. The other is where some piece of 
State legislation alleged to contravene the Constitution has 
been judicially decided to contravene it, and to be therefore 
invalid. The decision, in narrowing the limits of State author¬ 
ity, tends to widen the prohibitive authority of the Constitu¬ 
tion, and confirms it in a range and scope of action previously 
doubtful. 

Questions of the above kinds sometimes arise as questions of 
Interpretation in the strict sense of the term, i.e. as questions 
of the meaning of a term or phrase which is so far ambiguous 
that it might be taken either to cover or not to cover a case 
apparently contemplated by the people when they enacted the 
Constitution. Sometimes they are rather questions to which 
we may apply the name of Construction, i.e. the case that has 
arisen is one apparently not contemplated by the enactors of 
the Constitution, or one which, though possibly contemplated, 
has for brevity’s sake been omitted; but the Constitution has 
nevertheless to be applied to its solution. In the former case 
the enacting power has said something which bears, or is sup¬ 
posed to bear, on the matter, and the point to be determined 
is, What do the words mean ? In the latter it has not directly 
referred to the matter, and the question is, Can anything be 
gathered from its language which covers the point that has 
arisen, which establishes a principle large enough to reach and 
include an unmentioned case, indicating what the enacting 
authority would have said had the matter been present to its 
mind, or had it thought fit to enter on an enumeration of specific 
instances ? 1 As the Constitution is not only a well-drafted 

1 For example, the question whether an agreement carried out between a 
State and an individual by a legislative act of a State is a “contract” within 
the meaning of the prohibition against impairing the obligation of a contract, 
is a question of interpretation proper, for it turns on the determination of the 
meaning of the term “contract.” The question whether Congress had power 
to pass an act emancipating the slaves of persons aiding in a rebellion was a 
question of construction, because the case did not directly arise under any pro¬ 
vision of the Constitution, and was apparently not contemplated by the framers 



chap, xxxiii INTERPRETATION OF CONSTITUTION 379 


instrument with few ambiguities but also a short instrument 
which speaks in very general terms, mere interpretation has been 
far less difficult than construction. 1 It is through the latter 
chiefly that the Constitution has been, and still continues to be, 
developed and expanded. The nature of these expansions will 
appear from the nature of the Federal government. It is a 
government of delegated and specified powers. The people 
have entrusted to it, not the plenitude of their own authority, 
but certain enumerated functions, and its lawful action is limited 
to these functions. Hence, when the Federal executive does an 
act, or the Federal legislature passes a law, the question arises — 
Is the power to do this act or pass this law one of the powers which 
the people have by the Constitution delegated to their agents ? 
The power may never have been exerted before. It may not be 
found expressed, in so many words, in the Constitution. Never¬ 
theless it may, upon the true construction of that instrument, 
taking one clause with another, be held to be therein contained. 

Now the doctrines laid down by Chief-Justice Marshall, and 
on which the courts have constantly since proceeded, may be 
summed up in two propositions. 

1. Every power alleged to be vested in the National govern¬ 
ment, or any organ thereof, must be affirmatively shown to 
have been granted. There is no presumption in favour of the 
existence of a power; on the contrary, the burden of proof 
lies on those who assert its existence, to point out something 
in the Constitution which, either expressly or by necessary im¬ 
plication, confers it. Just as an agent, claiming to act on be- 

thereof. It was a question which had to be solved by considering what the 
war powers contained in the Constitution might be taken to imply. The 
question whether the National government has power to issue treasury notes is 
also a question of construction, because, although this is a case which may 
possibly have been contemplated when the Constitution was enacted, it is to be 
determined by ascertaining whether the power “to borrow money” covers this 
particular method of borrowing. There is no ambiguity about the word “bor¬ 
row” ; the difficulty is to pronounce which out of various methods of borrow¬ 
ing, some of which probably were contemplated, can be properly deemed, on a 
review of the whole financial attributes and functions of the National govern¬ 
ment, to be included within the borrowing power. 

As to the provision restraining States from passing laws impairing the obli¬ 
gation of a contract, see note at the end of this volume on the case of Dart¬ 
mouth College v. Woodward. 

1 As the Constitution is deemed to proceed from the People who enacted it, 
not from the Convention who drafted it, it is regarded for the purposes of inter¬ 
pretation as being the work not of a group of lawyers but of the people them¬ 
selves. For a useful summary of some of the general rules of constitutional 
interpretation, see Patterson’s Federal Restraints on State Action, pp. 215-217. 



380 


THE NATIONAL GOVERNMENT 


PART I 


half of his principal, must make out by positive evidence that 
his principal gave him the authority he relies on; so Congress, 
or those who rely on one of its statutes, are bound to show that 
the people have authorized the legislature to pass the statute. 
The search for the power will be conducted in a spirit of strict 
exactitude, and if there be found in the Constitution nothing 
which directly or impliedly conveys it, then whatever the ex¬ 
ecutive or legislature of the National government, or both of 
them together, may have done in the persuasion of its existence, 
must be deemed null and void, like the act of any other unau¬ 
thorized agent. 1 

2. When once the grant of a power by the people to the 
National government has been established, that power will be 
construed broadly. The strictness applied in determining its 
existence gives place to liberality in supporting its application. 
The people — so Marshall and his successors have argued — 
when they confer a power, must be deemed to confer a wide dis¬ 
cretion as to the means whereby it is to be used in their service. 
For their main object is that it should be used vigorously and 
wisely, which it cannot be if the choice of methods is narrowly 
restricted; and while the people may well be chary in delegat¬ 
ing powers to their agents, they must be presumed, when they 
do grant these powers, to grant them with confidence in the 
agents’ j udgment, allowing all that freedom in using one means 
or another to attain the desired end which is needed to ensure 
success. 2 This, which would in any case be the common-sense 
view, is fortified by the language of the Constitution, which 
authorizes Congress “to make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the Govern¬ 
ment of the United States, or in any department or office thereof.” 

1 For instance, a person summoned as a witness before a committee of the 
House of Representatives was imprisoned by order of the House for refusing to 
answer certain questions put to him. He sued the sergeant-at-arms for false 
imprisonment, and recovered damages, the Supreme court holding that as the 
Constitution could not be shown to have conferred on either House of Con¬ 
gress any power to punish for contempt, that power (though frequently 
theretofore exercised) did not exist, and the order of the House therefore 
constituted no defence for the sergeant’s act (Kilbourn v. Thompson , 103 
United States, 168). 

2 For instance, Congress having power to declare war, has power to prose¬ 
cute it by all means necessary for success, and to acquire territory by con¬ 
quest or treaty. Having power to borrow money, Congress may, if it thinks 
fit, issue treasury notes, and may make them legal tender. 



chap, xxxiii INTERPRETATION OF CONSTITUTION 381 


The sovereignty of the National government, therefore, “ though 
limited to specified objects, is plenary as to those objects” 1 
and supreme in its sphere. Congress, which cannot go one step 
beyond the circle of action which the Constitution has traced 
for it, may within that circle choose any means which it deems 
apt for executing its powers, and is in its choice of means subject 
to no review by the courts in their function of interpreters, 
because the people have made their representatives the sole and 
absolute judges of the mode in which the granted powers shall 
be employed. This doctrine of implied powers, and the inter¬ 
pretation of the words “ necessary and proper,” were for many 
years a theme of bitter and incessant controversy among Ameri¬ 
can lawyers and publicists. 2 The history of the United States 
is in a large measure a history of the arguments which sought to 
enlarge or restrict its import. One school of statesmen urged that 
a lax construction would practically leave the States at the mercy 
of the National government, and remove those checks on the 
latter which the Constitution was designed to create ; while the 
very fact that some powers were specifically granted must 
be taken to import that those not specified were withheld, ac¬ 
cording to the old maxim expressio unius exclusio alterius, 
which Lord Bacon concisely explains by saying, “as exception 


1 See Gibbons v. Ogden, 9 Wheat, p. 1 sqq., judgment of Marshall, C.-J. 

2 “ The powers of the government are limited, and its limits are not to be 
transcended. But the sound construction of the Constitution must allow to the 
national legislature that discretion with respect to the means by which the 
powers it confers are to be carried into execution, which will enable that body 
to perform the high duties assigned to it in the manner most beneficial to the 
people. Let the end be legitimate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly adapted to that end, 
which are not prohibited but consistent with the letter and spirit of the Constitu¬ 
tion, are constitutional.” — Marshall, C.-J., in M’Culloch v. Maryland (4 Wheat. 
316). This is really a working-out t of one of the points of Hamilton s famous 
argument in favour of the constitutionality of a United States bank: “Every 
power vested in a government is in its nature sovereign, and includes by force 
of the term a right to employ all the means requisite and fairly applicable to 
the attainment of the ends of such power, and which are not precluded by 
restrictions and exceptions specified in the Constitution.” Works (Lodge’s 
ed.), vol. iii. p. 181. 

Judge Hare sums up the matter by saying, ‘ Congress is sovereign as re¬ 
gards the objects and within the limits of the Constitution. It may use all 
proper and suitable means for carrying the powers conferred by the Constitu¬ 
tion into effect. The means best suited at one time may be inadequate at 
another; hence the need for vesting a large discretion in Congress. . . . ‘Nec¬ 
essary and proper’ are therefore, as regards legislation, nearly if not quite 
synonymous, that being ‘necessary’ which is suited to the object and calculated 
to attain the end in view.” — American Constitutional Law, p. 107. 



382 


THE NATIONAL GOVERNMENT 


PART i 


strengthens the force of a law in cases not excepted, so enumera¬ 
tion weakens* it in cases not enumerated.” It was replied by 
the opposite school that to limit the powers of the government 
to those expressly set forth in the Constitution would render that 
instrument unfit to serve the purposes of a growing and chang¬ 
ing nation, and would, by leaving men no legal means of attain¬ 
ing necessary but originally uncontemplated aims, provoke 
revolution and work the destruction of the Constitution itself. 1 

This latter contention derived much support from the fact 
that there were certain powers that had not been mentioned in 
the Constitution, but which were so obviously incident to a 
national government that they must be deemed to be raised by 
implication. 2 For instance, the only offences which Congress 
is expressly empowered to punish are treason, the counterfeiting 
of the coin or securities of the government, and piracies and 
other offences against the law of nations. But it was very 
early held that the power to declare other acts to be offences 
against the United States, and punish them as such, existed .as 
a necessary appendage to various general powers. So the 
power to regulate commerce covered the power to punish 
offences obstructing commerce; the power to manage the post- 
office included the right to fix penalties on the theft of letters ; 
and, in fact, a whole mass of criminal law grew up as a sanc¬ 
tion to the civil laws which Congress had been directed to 
pass. 

The three lines along which this development of the implied 
powers of the government has chiefly progressed, have been 
those marked out by the three express powers of taxing and 
borrowing money, of regulating commerce, and of carrying on 
war. Each has produced a progeny of subsidiary powers, some 
of which have in their turn been surrounded by an unexpected 
offspring. Thus from the taxing and borrowing powers there 
sprang the powers to charter a national bank and exempt its 
branches and its notes from taxation by a State (a serious re- 

1 See the philosophical remarks of Story, J., in Martin v. Hunter's Lessee 
(1 Wheat, p. 304 sqq.). 

2 Stress was also laid on the fact that whereas the Articles of Confederation 
of 1781 contained (Art. ii.) the expression, “Each State retains every power 
and jurisdiction and right not expressly delegated to the United States in Con¬ 
gress assembled,” the Constitution merely says (Amendment x.), “The powers 
not granted to the United States are reserved to the States respectively or to 
the people,” omitting the word “expressly.” 



chap, xxxiii INTERPRETATION OF CONSTITUTION 383 


striction on State authority), to create a system of custom¬ 
houses and revenue cutters, to establish a tariff for the protec¬ 
tion of native industry. Thus the regulation of commerce has 
been construed to include legislation regarding every kind 
of transportation of goods and passengers, whether from 
abroad or from one State to another, regarding navigation, 
maritime and internal pilotage, maritime contracts, etc., to¬ 
gether with the control of all navigable waters not situate 
wholly within the limits of one State, the construction of all 
public works helpful to commerce between States or with 
foreign countries, the power to regulate or prohibit immigration, 
and finally power to establish a railway commission and control 
all inter-State traffic. 1 The war power proved itself even more 
elastic. The executive and the majority in Congress found 
themselves during the War of Secession obliged to stretch 
this power to cover many acts trenching on the ordinary rights 
of the States and of individuals, till there ensued something 
which, fifty years earlier, would have been deemed to approach 
a suspension of constitutional guarantees in favour of the Fed¬ 
eral government. 

The courts have occasionally gone even further afield, and 
have professed to deduce certain powers of the legislature from 
the sovereignty inherent in the National government. In its 
last decision on the legal tender question, a majority of the 
Supreme court seems to have placed upon this ground, though 
with special reference to the section enabling Congress to bor¬ 
row money, its affirmance of that competence of Congress to 
declare paper money a legal tender for debts, which the earlier 
decision of 1871 had referred to the war power. This position 
evoked a controversy of wide scope, for the question what 
sovereignty involves belongs as much to political as to legal 

1 The case of Gibbons v. Ogden supplies an interesting illustration of the way 
in which this doctrine of implied powers works itself out. The State of New 
York had, in order to reward Fulton and Livingston for their services in intro¬ 
ducing steamboats, passed a statute giving them an exclusive right of navigat¬ 
ing the Hudson River with steamers. A case having arisen in which this 
statute was invoked, it was alleged that the statute was invalid, because in¬ 
consistent with an Act passed by Congress. The question followed, Was 
Congress entitled to pass an Act dealing with the navigation of the Hudson? 
and it was held that the power to regulate commerce granted to Congress by 
the Constitution implied a power to legislate for navigation on such rivers as 
the Hudson, and that Congress having exercised that power, the action of the 
States on the subject was necessarily excluded. By this decision a vast field 
of legislation was secured to Congress and closed to the States. 



384 


THE NATIONAL GOVERNMENT 


PART I 


science, and may be pushed to great lengths upon considera¬ 
tions with which law proper has little to do. 

The above-mentioned instances of development have been 
worked out by the courts of law. But others are due to the 
action of the executive, or of the executive and Congress con¬ 
jointly. Thus, in 1803, President Jefferson negotiated and 
completed the purchase of Louisiana, the whole vast posses¬ 
sions of France beyond the Mississippi. He believed himself 
to be exceeding any powers which the Constitution conferred; 
and desired to have an amendment to it passed, in order to 
validate his act. But Congress and the people did not share 
his scruples, and the approval of the legislature was deemed 
sufficient ratification for a step of transcendent importance, 
which no provision of the Constitution bore upon. In 1807 
and 1808 Congress laid, by two statutes, an embargo on all 
shipping in United States ports, thereby practically destroying 
the lucrative carrying trade of the New England States. Some 
of these States declared the Act unconstitutional, arguing that 
a power to regulate commerce was not a power to annihilate it, 
and their courts held it to be void. Congress, however, per¬ 
sisted for a year, and the Act, on which the Supreme court 
never formally pronounced, has been generally deemed within 
the Constitution, though Justice Story (who had warmly op¬ 
posed it when he sat in Congress) remarks that it went to the 
extreme verge. More startling, and more far-reaching in their 
consequences, were the assumptions of Federal authority made 
during the War of Secession by the executive and confirmed, 
some expressly, some tacitly, by Congress and the people. 1 It 
was only a few of these that came before the courts, and the 
courts, in some instances, disapproved them. But the execu¬ 
tive continued to exert this extraordinary authority. Appeals 

1 See Judge Cooley’s History of Michigan, p. 353. The same eminent au¬ 
thority observes to me: “The President suspended the writ of habeas corpus. 
The courts held this action unconstitutional (it was subsequently confirmed by 
Congress), but he did not at once deem it safe to obey their judgment. Military 
commissioners, with the approval of the War Department and the President, 
condemned men to punishment for treason, but the courts released them, hold¬ 
ing that the guaranties of liberty in the Constitution were as obligatory in war 
as in peace, and should be obeyed by all citizens, and all departments, and 
officers of government ( Milligan's case, 4 Wall. 1). The courts held closely to 
the Constitution, but as happens in every civil war, a great many wrongs were 
done in the exercise of the war power for which no redress, or none that was 
adequate, could possibly be had.’’ Inter arma silent leges must be always to 
some extent true, even under a Constitution like that of the United States. 



chap, xxxiii INTERPRETATION OF CONSTITUTION 385 


made to the letter of the Constitution by the minority were 
discredited by the fact that they were made by persons sym¬ 
pathizing with the Secessionists who were seeking to destroy 
it. So many extreme things were done under the pressure 
of necessity that something less than these extreme things 
came to be accepted as a reasonable and moderate compro¬ 
mise. 1 2 

The best way to give an adequate notion of the extent to 
which the outlines of th*e Constitution have been filled up by 
interpretation and construction, would be to take some of its 
more important sections and enumerate the decisions upon them 
and the doctrines established by those decisions. This process 
would, however, be irksome to any but a legal reader, and the 
legal reader may do it more agreeably for himself by consult¬ 
ing one of the annotated editions of the Constitution. He 
will there find that upon some provisions such as Art. i. §8 
(powers of Congress), Art. i. § 10 (powers denied to the States), 
Art. iii. §2 (extent of judicial power), there has sprung up 
a perfect forest of judicial constructions, working out the 
meaning and application of the few and apparently simple 
words of the original document into a variety of unforeseen 
results. The same thing has more or less befallen nearly 
every section of the Constitution and of the fifteen amend¬ 
ments. The process shows no signs of stopping; nor can it, 
for the new conditions of economics and politics bring up new 
problems for solution. But the most important work was that 
done during the first half century, and especially by Chief- 
Justice Marshall during his long tenure of the presidency of 
the Supreme court (1801-1835). It .is scarcely an exaggera¬ 
tion to call him, as an eminent American jurist has done, a 
second maker of the Constitution. I will not borrow the 
phrase which said of Augustus that he found Rome of brick 
and left it of marble, because Marshall's function was not 
to change but to develop. The Constitution was, except of 
course as regards the political scheme of national government, 
which was already well established, rather a ground plan than 
a city. It was, if I may pursue the metaphor, much what the 

1 Such as the suspension of the writ of habeas corpus, the emancipation of 
the slaves of persons aiding in the rebellion, the suspension of the statute of 
limitations, the practical extinction of State banks by increased taxation laid 
on them under the general taxing power. 

2 c 




386 


THE NATIONAL GOVERNMENT 


PART I 


site of Washington was at the beginning of this century, a 
symmetrical ground plan for a great city, but with only some 
tall edifices standing here and there among fields and woods. 
Marshall left it what Washington has now become, a splendid 
and commodious capital within whose ample bounds there are 
still some vacant spaces and some mean dwellings, but which, 
built up and beautified as it has been by the taste and wealth 
of its rapidly growing population, is worthy to be the centre 
of a mighty nation. Marshall was, of course, only one among 
seven judges, but his majestic intellect and the elevation of his 
character gave him such an ascendency, that he found himself 
only once in a minority on any constitutional question. 1 His 
work of building up and working out the Constitution was 
accomplished not so much by the decisions he gave as by the 
judgments in which he expounded the principles of these deci¬ 
sions, judgments which for their philosophical breadth, the 
luminous exactness of their reasoning, and the fine political 
sense which pervades them, have never been surpassed and 
rarely equalled by the most famous jurists of modern Europe 
or of ancient Rome. Marshall did not forget the duty of a 
judge to decide nothing more than the suit before him requires, 
but he was wont to set forth the grounds of his decision in 
such a way as to show how they would fall to be applied in 
cases that had not yet arisen. He grasped with extraordinary 
force and clearness the cardinal idea that the creation of a 
national government implies the grant of all such subsidiary 
powers as are requisite to the effectuation of its main powers 
and purposes, but he developed and applied this idea with so 
much prudence and sobriety, never treading on purely political 
ground, never indulging the temptation to theorize, but con¬ 
tent to follow out as a lawyer the consequences of legal princi¬ 
ples, that the Constitution seemed not so much to rise under 
his hands to its full stature, as to be gradually unveiled by him 
till it stood revealed in the harmonious perfection of the form 
which its framers had designed. That admirable flexibility 
and capacity for growth which characterize it beyond all other 


1 In that one case (Ogden v. Saunders ) there was a bare majority against 
him, and professional opinion now approves the view which he took. When 
Marshall became Chief-Justice only two decisions on constitutional law had 
been pronounced by the court. Between that time and his death fifty-one 
were given. 



chap, xxxiii INTERPRETATION OF CONSTITUTION 387 


rigid or supreme constitutions, is largely due to him, yet not 
more to his courage than to his caution. 1 

III. We now come to the third question: How is the inter¬ 
preting authority restrained? If the American Constitution is 
capable of being so developed by this expansive interpretation, 
what security do its written terms offer to the people and to the 
States ? What becomes of the special value claimed for Rigid 
constitutions that they preserve the frame of government 
unimpaired in its essential merits, that they restrain the ex¬ 
cesses of a transient majority, and (in Federations) the aggres¬ 
sions of a central authority? 

The answer is two-fold. In the first place, the interpreting 
authority is, in questions not distinctly political, different from 
the legislature and from the executive, amenable to neither, 
and composed of lawyers imbued with professional habits. 
There is therefore a probability that it will disagree with either 
of them when they attempt to transgress the Constitution, and 
will decline to stretch the law so as to sanction encroachments 
those authorities may have attempted. In point of fact, there 
have been few cases, and those chiefly cases of urgency dur¬ 
ing the war, in which the judiciary has been even accused of 
lending itself to the designs of the other organs of government. 
The period when extensive interpretation was most active 
(1800-1835) was also the period when the party opposed to a 
strong central government commanded Congress and the exec¬ 
utive, and so far from approving the course the court took, 
the dominant party then often complained of it. 

In the second place, there stands above and behind the legis¬ 
lature, the executive, and the judiciary, another power, that of 
public opinion. The President, Congress, and the courts are 
all, the two former directly, the latter practically, amenable to 
the people, and anxious to be in harmony with the general 
current of its sentiment. If the people approve the way in 
which these authorities are interpreting and using the Consti¬ 
tution, they go on; if the people disapprove, they pause, or at 
least slacken their pace. Generally the people have approved 
of such action by the President or Congress as has seemed 

1 Had the Supreme court been in those days possessed by the same spirit of 
strictness and literality which the Judicial Committee of the British Privy 
Council has generally applied to the construction of the British North America 
Act of 1867 (the Act which creates the Constitution of the Canadian Federation), 
the United States Constitution would never have grown to be what it now is. 




388 


THE NATIONAL GOVERNMENT 


PART I 


justified by the needs of the time, even though it may have 
gone beyond the letter of the Constitution : generally they 
have approved the conduct of the courts whose legal interpre¬ 
tation has upheld such legislative or executive action. Public 
opinion sanctioned the purchase of Louisiana, and the still 
bolder action of the executive in the Secession War. It ap¬ 
proved the Missouri compromise of 1820, which the Supreme 
court thirty-seven years afterwards declared to have been in 
excess of the powers of Congress. But it disapproved the 
Alien and Sedition laws of 1798, and although these statutes 
were never pronounced unconstitutional by the courts, this 
popular censure has prevented any similar legislation since 
that time. 1 The people have, of course, much less exact no¬ 
tions of the Constitution than the legal profession or the courts. 
But while they generally desire to see the powers of the gov¬ 
ernment so far expanded as to enable it to meet the exigen¬ 
cies of the moment, they are sufficiently attached to its gen¬ 
eral doctrines, they sufficiently prize the protection it affords 
them against their own impulses, to censure any interpretation 
which palpably departs from the old lines. And their censure 
is, of course, still more severe if the court seems to be acting 
at the bidding of a party. 

A singular result of the importance of constitutional inter¬ 
pretation in the American government may be here referred 
to. It is this, that the United States legislature has been 
largely — though less in recent years than formerly — occupied 
in purely legal discussions. When it is proposed to legis¬ 
late on a subject which has been heretofore little dealt with, 
the opponents of a measure have two lines of defence. They 
may, as Englishmen would in a like case, argue that the meas¬ 
ure is inexpedient. But they may also, which Englishmen 
cannot,, argue that it is unconstitutional, i.e. illegal, because 
transcending the powers of Congress. This is a question 
fit to be raised in Congress, not only as regards matters with 
which, as being purely political, the courts of law will refuse 
to interfere, but as regards all other matters also, because 
since a decision on the constitutionality of a statute can never 
be obtained from the judges by anticipation, the legislature 
ought to consider whether they are acting within their com- 

1 So it disapproved strongly, in the northern States, of the judgments de¬ 
livered by the majority of the Supreme court in the Dred Scott case. 



cbaj>. xxxiii INTERPRETATION OF CONSTITUTION 389 


petence. And it is a question on which a stronger case can 
often be made, and made with less exertion, than on the issue 
whether the measure be substantially expedient. Hence it 
was usually put in the fore-front of the battle, and argued 
with great vigour and acumen by leaders who might be more 
ingenious as lawyers than far-sighted as statesmen. 

A further consequence of this habit is pointed out by one of 
the most thoughtful among American constitutional writers. 
Legal issues are apt to dwarf and obscure the more substan¬ 
tially important issues of principle and policy, distracting from 
these latter the attention of the nation as well as the skill of 
congressional debaters. 

“The English legislature,” says Judge Hare, “is free to fol¬ 
low any course that will promote the welfare of the State, and 
the inquiry is not, ‘Has Parliament power to pass the Act?’ 
but, ‘Is it consistent with principle, and such as the circum¬ 
stances demand?’ These are the material points, and if the 
public mind is satisfied as to them there is no further contro¬ 
versy. In the United States, on the other hand, the question 
primarily is one of power, and in the refined and subtle dis¬ 
cussion which ensues, right is too often lost sight of or treated 
as if it were synonymous with might. It is taken for granted 
that what the Constitution permits it also approves, and that 
measures which are legal cannot be contrary to morals.” 

The interpretation of the Constitution has at times become 
so momentous as to furnish a basis for the formation of politi¬ 
cal parties; and the existence of parties divided upon such 
questions has of course stimulated the interest with which 
points of legal interpretation have been watched and can¬ 
vassed. Soon after the formation of the National government 
in 1789 two parties grew up, one advocating a strong central, 
authority, the other championing the rights of the States. Of 
these parties the former naturally came to insist on a liberal, 
an expansive, perhaps a lax, construction of the words of the 
Constitution, because the more wide is the meaning placed 
upon its grant of powers, so much the wider are those powers 
themselves. The latter party, on the other hand, was acting 
in protection both of the States and of the individual citizen 
against the central government, when it limited by a strict and 
narrow interpretation of the fundamental instrument the pow¬ 
ers which that instrument conveyed. The distinction which 




390 


THE NATIONAL GOVERNMENT 


PART I 


began in those early days has never since vanished. There 
has always been a party professing itself disposed to favour 
the central government, and therefore a party of broad construc¬ 
tion. There has always been a party claiming that it aimed at 
protecting the rights of the States, and therefore a party of strict 
construction. Some writers have gone so far as to find in these 
different doctrines regarding interpretation the foundation of all 
the political parties that have divided America. This view, how¬ 
ever, inverts the facts. It is not because men have differed in 
their reading of the Constitution that they have advocated or 
opposed an extension of Federal powers; it is their attitude on 
this substantial issue that has determined their attitude on the 
verbal one. Moreover, the two great parties have several 
times changed sides on the very question of interpretation. 
^The purchase of Louisiana and the Embargo acts were the 
work of the Strict Constructionists, while it was the Loose 
Constructionist party which protested against the latter meas¬ 
ure, and which, at the Hartford Convention of 1814, advanced 
doctrines of State rights almost amounting to those subse¬ 
quently asserted by South Carolina in 1832 and by the Seces¬ 
sionists of 1861. Parties in America, as in most countries, 
have followed their temporary interest; and if that interest 
happened to differ from some traditional party doctrine, they 
have explained the latter away. Whenever there has been a 
serious party conflict, it has been in reality a conflict over 
some living and practical issue, and only in form a debate upon 
canons of legal interpretation. What is remarkable, though 
natural enough in a country governed by a written instrument, 
is that every controversy has got involved with questions of 
constitutional construction. When it was proposed to exert 
some power of Congress, as for instance to charter a national 
bank, to grant money for internal improvements, to enact a 
protective tariff, the opponents of these schemes could plausi¬ 
bly argue, and therefore of course did argue, that they were 
unconstitutional. So any suggested interference with slavery 
in States or Territories was immediately declared to violate 
the State rights which the Constitution guaranteed. Thus 
every serious question came to be fought as a constitutional 
question. But as regards most questions, and certainly as 
regards the great majority of the party combatants, men did 
not attack or defend a proposal because they held it legally 



chap, xxxiii INTERPRETATION OF CONSTITUTION 391 


unsound or sound on the true construction of the Constitution, 
but alleged it to be constitutionally wrong or right because 
they thought the welfare of the country, or at least their party 
interests, to be involved. Constitutional interpretation was a 
pretext rather than a cause, a matter of form rather than of 
substance. 

The results were both good and evil. They were good in so 
far as they made both parties profess themselves defenders of 
the Constitution, zealous only that it should be interpreted 
aright; as they familiarized the people with its provisions, 
and made them vigilant critics of every legislative or execu¬ 
tive act which could affect its working. They were evil in 
distracting public attention from real problems to the legal 
aspect of those problems, and in cultivating a habit of casu¬ 
istry which threatened the integrity of the Constitution itself. 

Since the Civil War there has been much less of this casu¬ 
istry because there have been fewer occasions for it, the Broad 
Construction view of the Constitution having practically pre¬ 
vailed— prevailed so far that the Supreme court now holds 
that the power of Congress to make paper money legal tender 
is incident to the sovereignty of the National government, and 
that a Democratic House of Representatives passes a bill 
giving a Federal commission vast powers over all the railways 
which pass through more than one State. There is still a 
party inclined to strict construction, but the strictness which 
it upholds would have been deemed lax by the Broad Con¬ 
structionists of the days before the Civil War. The interpre¬ 
tation which has thus stretched the Constitution to cover powers 
once undreamt of, may be deemed a dangerous resource. But 
it must be remembered that even the constitutions we call 
Rigid must make their choice between being bent or being 
broken. The Americans have more than once bent their Consti¬ 
tution in order that they might not be forced to break it. 



CHAPTER XXXIV 


THE DEVELOPMENT OF THE CONSTITUTION BY USAGE 

There is yet another way in which the Constitution has been 
developed. This is by laying down rules on matters which are 
within its general scope, but have not been dealt with by its 
words, by the creation of machinery which it has not provided 
for the attainment of objects it contemplates, or, to vary the 
metaphor, by ploughing and planting ground which, though 
included within the boundaries of the Constitution, was left 
waste by those who drew up the original instrument. 

Although the Constitution is curiously minute upon some 
comparatively small points, such as the qualifications of mem¬ 
bers of Congress and the official record of their votes, it passes 
over in silence many branches of political action, many details 
essential to every government. Some may have been forgotten, 
but some were purposely omitted, because the Convention 
could not agree upon them, or because they would have provoked 
opposition in the ratifying conventions, or because they were 
thought unsuited to a document which it was desirable to draft 
concisely and to preserve as far as possible unaltered. This 
was wise and indeed necessary, but it threw a great responsi¬ 
bility upon those who had to work the government which the 
Constitution created. They found nothing within the four 
corners of the instrument to guide them on points whose grav¬ 
ity was perceived as soon as they had to be settled in practice. 
Many of such points could not be dealt with by interpreta¬ 
tion or construction, however liberally extensive it might be, 
because there was nothing in the words of the Constitution 
from which such construction could start, and because they 
were in some instances matters which, though important, could 
not be based upon principle, but must be settled by an arbitrary 
determination. 

Their settlement, which began with the first Congress, has 
been effected in two ways, by Congressional legislation and by 
usage. 


392 


chap, xxxiv DEVELOPMENT OF THE CONSTITUTION 393 


Congress was empowered by the Constitution to pass statutes 
on certain prescribed topics. On many other topics not spe¬ 
cially named, but within its general powers, statutes were evi¬ 
dently needed. For instance, the whole subject of Federal 
taxation, direct and indirect, the establishment of Federal 
courts, inferior to the Supreme court, and the assignment of 
particular kinds and degrees of jurisdiction to each class of 
courts, the organization of the civil, military, and naval services 
of the country, the administration of Indian affairs and of the 
Territories, the rules to be observed in the elections of Presi¬ 
dents and senators, these and many other matters of high im¬ 
port are regulated by statutes, statutes which Congress can of 
course change but which, in their main features, have been not 
greatly changed since their first enactment. Although such 
statutes cannot be called parts of the Constitution in the same 
sense as the interpretations judicially placed upon it, for these 
latter have (subject to the possibility of their reversal) become 
practically incorporated with its original text, still they have 
given to its working a character and direction which must be 
borne in mind in discussing it, and which have, in some in¬ 
stances, produced results opposed to the ideas of its framers. To 
take a recent instance, the passing of the Inter-State Com¬ 
merce Acts, which apply to all the greater railways over the 
whole United States, is an assertion of Federal authority over 
numerous and powerful corporations chartered by and serving 
the various States, which gives a new aspect and significance 
to the clause in the Constitution empowering Congress to regu¬ 
late commerce. Legal interpretation held that clause to be 
sufficiently wide to enable Congress to legislate on inter-State 
railways; but when Congress actually exerted its power in en¬ 
acting this statute a further step, and a long one, was taken 
towards bringing the organs of transportation under national 
control. 1 Legislation, therefore, though it cannot in strictness 
enlarge the frontiers fixed by the Constitution, can give to cer¬ 
tain provinces lying within those frontiers far greater impor¬ 
tance than they formerly possessed, and by so doing, can 
substantially change the character of the government. It 

1 The recognition that the Constitution empowers Congress to deal with a 
given subject does not imply that every detail of the Act dealing therewith is 
above objection. Although prima facie Congress, when competent to legislate 
on a subject, is free to choose its means, still it remains open to any one to 
challenge the constitutionality of any particular provisions in a statute. 



394 


THE NATIONAL GOVERNMENT 


PART I 


cannot engender a new power, but it can turn an old one in a 
new direction, and call a dormant one into momentous activity. 

Next as to usage. Custom, which is a law-producing agency 
in every department, is specially busy in matters which per¬ 
tain to the practical conduct of government. Understandings 
and conventions are in modern practice no less essential to 
the smooth working of the English Constitution, than are the 
principles enunciated in the Bill of Rights. Now understand¬ 
ings are merely long-established usages, sanctioned by no stat¬ 
ute, often too vague to admit of precise statement, 1 yet in 
some instances deemed so binding that a breach of them would 
damage the character of a statesman or a ministry just as 
much as the transgression of a statute. In the United States 
there are fewer such understandings than in England, be¬ 
cause under a Constitution drawn out in one fundamental 
document everybody is more apt to stand upon his strict legal 
rights, and the spirit of institutions departs less widely from 
their formal character. Nevertheless some of those features 
of American government to which its character is chiefly due 
and which recur most frequently in its daily working, rest 
neither upon the Constitution nor upon any statute, but upon 
usage alone. Here are some instances. 

The presidential electors have by usage and by usage only 
lost the right the Constitution gave them of exercising their 
discretion in the choice of a chief magistrate. 

No President has been elected to more than two continuous 
terms, though the Constitution in no way restricts re-eligibility. 2 

The President uses his veto more freely than he did at first, 
and for a wider range of purposes. 

The Senate now never exercises its undoubted power of re¬ 
fusing to confirm the appointments made by the President to 
cabinet offices. 

The President is permitted to remove, without asking the 
consent of the Senate, officials to whose appointment the con¬ 
sent of the Senate is necessary. This was for a time regulated 

1 For instance, it is difficult to state precisely the practical (as distin¬ 
guished from the legal) rights of the House of Lords to reject bills passed by 
the House of Commons, or the duty of the Crown when a Cabinet makes some 
very unusual request; although it is admitted that as a rule the Lords ought 
to yield to the Commons and the Crown to be guided by the advice of its ministers. 

2 See ante, Chap. V. The Federalist (No. lxviii.) says that the President 
will be and ought to be re-elected as often as the people think him worthy of 
their confidence. 



chap, xxxiv DEVELOPMENT OF THE CONSTITUTION 395 


by statute, but the statute having been repealed the old usage 
has revived. (See Chapter VI.) 

Both the House and the Senate conduct their legislation by 
means of standing committees. This vital peculiarity of the 
American system of government has no firmer basis than the 
standing orders of each House, which can be repealed at any 
moment, but have been maintained for many years. 

The Speaker of the House was for a long time entrusted with 
the important power of nominating all the House committees. 
That function now belongs to the committee of Ways and Means. 

The chairmen of the chief committees of both Houses, which 
control the great departments of State ( e.g . foreign affairs, 
navy, justice, finance), have practically become an additional 
set of ministers for those departments. 

The custom of going into caucus, by which the parties in each 
of the two Houses of Congress determine their action, and the 
obligation on individual members to obey the decision of the 
caucus meeting, are mere habits or understandings, without legal 
sanction. So is the right claimed by the senators from a State 
to control the Federal patronage of that State. So is the usage 
that appropriation bills shall be presented first to the House. 

The rule that a member of Congress must be chosen from 
the district, as well as from the State, in which he resides, 
rests on no Federal enactment; indeed, neither Congress nor 
any State legislature would be entitled thus to narrow the 
liberty of choice which the words of the Constitution imply. 

Jackson introduced, and succeeding Presidents continued the 
practice of dismissing Federal officials belonging to the oppo¬ 
site party, and appointing none but adherents of their own 
party to the vacant places. This is the so-called Spoils Sys¬ 
tem, which, having been applied also to State and municipal 
offices, became and long continued to be the corner-stone of 
“practical politics” in America. The Constitution was nowise 
answerable for it and legislation only partially. 

Neither in English law nor in American is there anything 
regarding the re-eligibility of a member of the popular cham¬ 
ber ; nor can it be said that usage has established in either 
country any broad general rule on the subject. But whereas 
the English tendency has been to re-elect a member unless 
there is some positive reason for getting rid of him, in many 
parts of America men were disposed the other way, and refused 




396 


THE NATIONAL GOVERNMENT 


PART 1 


to re-elect him just because he had had his turn already. Any 
one can understand what a difference this makes in the charac¬ 
ter of the chamber. 

We see, then, that several salient features of the present 
American government, such as the popular election of the 
President, the restriction of eligibility to Congress to persons 
resident in the district to be represented, the influence of sena¬ 
tors and congressmen over patronage, the immense power of 
the Speaker, the Spoils system, are due to usages which have 
sprung up round the Constitution and profoundly affected its 
working, but which are not parts of the Constitution, nor nec¬ 
essarily attributable to any specific provision which it contains. 
The most remarkable instance of all, the working of the system 
of government by highly organized parties, including the choice 
of presidential candidates by the great parties assembled in their 
national conventions, will be fully considered in later chapters. 

One of the changes which began about twenty years after 
the adoption of the Constitution deserves special mention. 
The Constitution contains no provisions regarding the electoral 
franchise in congressional elections save the three following : — 

That the franchise shall in every State be the same as that 
by which the members of the “most numerous branch of the 
State legislature” are chosen (Art. i. § 2). 

That when any male citizens over twenty-one years of age 
are excluded by any State from the franchise (except for crime) 
the basis of representation in Congress of that State shall be 
proportionately reduced (Am. xiv., 1868). 

That “the right* of citizens of the United States to vote 
shall not be denied or abridged on account of race, colour, or 
previous condition of servitude” (Am. xv., 1870). 

Subject to these conditions every State may regulate the 
electoral franchise as it pleases. 

In the first days of the Constitution the suffrage was in 
nearly all States limited by various conditions ( e.g . property 
qualification, length of residence, etc.) which excluded, or 
might have excluded, though in some States the proportion 
of very poor people was small, a considerable number of the 
free inhabitants. At present the suffrage is in every State 
practically universal. It had become so in the Free States 1 
even before the war. Here is an advance towards pure democ- 

1 Save that in many of them persons of colour were placed at a disadvantage. 



chap, xxxiv DEVELOPMENT OF THE CONSTITUTION 397 


racy effected without the action of the national legislature, but 
solely by the legislation of the several States, a legislation 
which, as it may be changed at any moment, is, so far as the 
national government is concerned, mere custom. And of this 
great step, modifying profoundly the character and working of 
the government, there is no trace in the words of the Con¬ 
stitution other than the provisions of the fourteenth and fif¬ 
teenth amendments introduced for the benefit of the liberated 
negroes. 

It is natural, it is indeed inevitable, that there should be in 
every country such a parasitic growth of usages and conven¬ 
tions round the solid legal framework of government. But 
must not the result of such a growth be different where a rigid 
constitution exists from what it is in countries where the con¬ 
stitution is flexible? In England usages of the kind described 
become inwoven with the law of the country as settled by 
statutes and decisions, and modify that law. Cases come 
before a court in which a usage is recognized and thereby 
obtains a sort of legal sanction. Statutes are passed in which 
an existing usage is taken for granted, and which therefore 
harmonize with it. Thus the always changing Constitution 
becomes interpenetrated by custom. Custom is in fact the first 
stage through which a rule passes before it is embodied in 
binding law. But in America, where the fundamental law 
cannot readily be, and is in fact very rarely altered, may we 
not expect a conflict, or at least a want of harmony, between 
law and custom, due to the constant growth of the one and the 
immutability of the other? 

In examining this point one must distinguish between sub¬ 
jects on which the Constitution is silent and subjects on which 
it speaks. As regards the former there is little difficulty. 
Usage and legislation may expand the Constitution in what 
way they please, subject only to the control of public opinion. 
The courts of law will not interfere, because no provision of 
the Constitution is violated ; and even where it may be thought 
that an act of Congress or of the executive is opposed to the 
spirit of the Constitution, still if it falls within the range of the 
discretion which these authorities have received, it will not be 
questioned by the judges. 1 

1 “It is an axiom in our jurisprudence that an Act of Congress is not to be 
pronounced unconstitutional unless the defect of power to pass it is so clear as 



398 


THE NATIONAL GOVERNMENT* 


PART I 


If, on the other hand, either congressional legislation or 
usage begins to trench on ground which the Constitution ex¬ 
pressly covers, the question at once arises whether such legis¬ 
lation is valid, or whether an act done in conformity with such 
usage is legal. Questions of this kind do not always come 
before the courts, and if they do not, the presumption is in 
favour of whatever act has been done by Congress or by any 
legally constituted authority. When, however, such a question 
is susceptible of judicial determination and is actually brought 
before a tribunal, the tribunal is disposed rather to support 
than to treat as null the act done. Applying that expansive 
interpretation which has prevailed since the war as it prevailed 
in the days of Chief-Justice Marshall, the Supreme court is apt 
to find grounds for moving in the direction which’ it perceives 
public opinion to have taken, and for putting on the words of 
the Constitution a sense which legalizes what Congress has 
enacted or custom approved. When this takes place things 
proceed smoothly. The change which circumstances call for 
is made gently, and is controlled, perhaps modified, in its 
operation. 

But sometimes the courts feel bound to declare some statute, 
or executive act done in pursuance of usage, contrary to the 
Constitution. What happens? In theory the judicial deter¬ 
mination is conclusive, and ought to check any further progress 
in the path which has been pronounced unconstitutional. But 
whether this result follows will in practice depend on the cir¬ 
cumstances of the moment. If the case is not urgent, if there 
is no strong popular impulse behind Congress or the President, 
no paramount need for the usage which had sprung up and 


to admit of no doubt. Every doubt is to be resolved in favour of the validity 
of the law.” — Swayne, J., in United States v. Rhodes, 1 Abb. U. S. 49. 

An interesting illustration of the application of legislative power in uncon¬ 
templated ways is supplied by a case which arose in the efforts made to check 
the evils arising from lotteries. Congress, being unable to strike at a lottery 
established in Louisiana, passed a statute forbidding the post-office to carry 
newspapers containing lottery advertisements (since it was by these that mis¬ 
chief was done over the rest of the Union), and imposing a penalty on any one 
posting lottery advertisements in breach of the statute. A newspaper proprietor 
arrested for such breach carried his case to the Supreme court, alleging the 
statute to be unconstitutional because inconsistent with the first amendment 
to the Constitution. The court however unanimously held (1892) that that 
amendment did not apply, and supported the right of Congress to use the con¬ 
trol of the post-office as a means of dealing with the harm done by lotteries ; and 
public opinion heartily welcomed this decision. 



chap, xxxiv DEVELOPMENT OF THE CONSTITUTION 399 


is now disapproved, the decision of the courts will be acqui¬ 
esced in; and whatever tendency towards change exists will 
seek another channel where no constitutional obstacle bars 
its course. But if the ±*eeds of the time be pressing, courts 
and Constitution may have to give way. Salus populi 
lex suprema. Above the written law, however sacred, stands the 
safety of the commonwealth, which will be secured, if possible in 
conformity with the Constitution; but if that be not possible, 
then by evading, or even by overriding the Constitution . 1 
This is what happened in the Civil War, when men said that 
they would break the Constitution in order to preserve it. 

Attempts to disobey the Constitution have been rare, because 
the fear of clashing with it has arrested many mischievous 
proposals in their earlier stages, while the influence of public 
opinion has averted possible collisions by leading the courts to 
lend their ultimate sanction to measures or usages which, had 
they come under review at their first appearance, might have 
been pronounced unconstitutional . 2 That collisions have been 
rare is wide evidence of the wisdom of American statesmen 
and lawyers. But politicians in other countries will err if they 
suppose that the existence of a rigid or supreme constitution is 
enough to avert collisions, or to secure the victory of the funda¬ 
mental instrument. A rigid constitution resembles, not some 
cliff of Norwegian gneiss which bears for centuries unchanged 
the lash of Atlantic billows, but rather a sea-wall, such as guards 
the seaside promenade of an English town, whose smooth sur¬ 
face resists the ordinary waves and currents of the Channel 
but may be breached or washed away by some tremendous 
tempest. The American Constitution has stood unbroken, 


1 In a remarkable letter written to Mr. Hodges (4th April 1864), President 
Lincoln said : * ‘ My oath to preserve the Constitution imposed on me the duty of 
preserving by every indispensable means that government, that nation, of which 
the Constitution was the organic law. Was it possible to lose the nation and 
yet preserve the Constitution ? By general law life and limb must be pro¬ 
tected, yet often a limb must be amputated to save a life, but a life is never 
wisely given to save a limb. I felt that measures, otherwise unconstitutional, 
might become lawful by becoming indispensable to the preservation of the 
Constitution through the preservation of the nation. Right or wrong I as¬ 
sumed this ground, and now avow it. I could not feel that to the best of my 
ability I had even tried to preserve the Constitution, if, to save slavery, or any 
minor matter, I should permit the wreck of government, country, and Consti¬ 
tution altogether.” 

2 Such as the expenditure of vast sums on ‘‘internal improvements” and 
the assumption of wider and wider powers over internal communications. 



400 


THE NATIONAL GOVERNMENT 


PART 1 


because America has never seen, as some European countries 
have seen, angry multitudes or military tyrants bent on de¬ 
stroying the institutions which barred the course of their passions 
or ambition. And it has also stood because it has submitted to 
a process of constant, though sometimes scarcely perceptible, 
change which has. adapted it to the conditions of a new age. 

The solemn determination of a people enacting a fundamen¬ 
tal law by which they and their descendants shall be governed 
cannot prevent that law, however great the reverence they 
continue to profess for it, from being worn away in one part, 
enlarged in another, modified in a third, by the ceaseless action 
of influences playing upon the individuals who compose the 
people. Thus the American Constitution has necessarily 
changed as the nation has changed, has changed in the spirit 
with which men regard it, and therefore in its own spirit. To 
use the words of the eminent constitutional lawyer whom I 
have more than once quoted : “We may think,” says Judge 
Cooley, “that we have the Constitution all before us; but for 
practical purposes the Constitution is that which the govern¬ 
ment, in its several departments, and the people in the per¬ 
formance of their duties as citizens, recognize and respect as 
such ; and nothing else is. . . . Cervantes says : Every one is 
the son of his own works. This is more emphatically true 
of an instrument of government than it can possibly be of a 
natural person. What it takes to itself, though at first’ unwar¬ 
rantable, helps to make it over into a new instrument of govern¬ 
ment, and it represents at last the acts done under it.” 



CHAPTER XXXV 


THE RESULTS OF CONSTITUTIONAL DEVELOPMENT 

We have seen that the American Constitution has changed, 
is changing, and by the law of its existence must continue to 
change, in its substance and practical working even when its 
words remain the same. “Time and habit/’ said Washington, 
“are at least as necessary to fix the true character of govern¬ 
ments as of other human institutions 1 and while habit fixes 
some things, time remoulds others. 

It remains to ask what has been the general result of the 
changes it has suffered, and what light an examination of its 
history, in this respect, throws upon the probable future of the 
instrument and on the worth of Rigid or Supreme constitutions 
in general. 

The Constitution was avowedly created as an instrument of 
checks and balances. Each branch of the National government 
was to restrain the others, and maintain the equipoise of the 
whole. The legislature was to. balance the executive, and the 
judiciary both. The two houses of the legislature were to 
balance one another. The National government, taking all its 
branches together, was balanced against the State governments. 
As this equilibrium was placed under the protection of a docu¬ 
ment, unchangeable save by the people themselves, no one of 
the branches of the National government has been able to absorb 
or override the others, as the House of Commons and the Cabinet, 
itself a child of the House of Commons, have in England over¬ 
ridden and subjected the Crown and the House of Lords. Each 
branch maintains its independence, and can, within certain 
limits, defy the others. 

But there is among political bodies and offices (i.e. the per¬ 
sons who from time to time fill the same office) of necessity a 
constant strife, a struggle for existence similar to that which 
Mr. Darwin has shown to exist among plants and animals ; and 
as in the case of plants and animals so also in the political sphere 

1 Farewell Address, 17th September 1796. 

401 


2d 


402 


THE NATIONAL GOVERNMENT 


PART I 


this struggle stimulates each body or office to exert its utmost 
force for its own preservation, and to develop its aptitudes in any 
direction wherein development is possible. Each branch of the 
American government has striven to extend its range and its 
powers; each has advanced in certain directions, but in others 
has been restrained by the equal or stronger pressure of other 
branches. I shall attempt to state the chief differences per¬ 
ceptible between the ideas which men entertained regarding the 
various bodies and offices of the government when they first 
entered life, and the aspect they now wear to the nation. 

The President has developed a capacity for becoming, in 
moments of national peril, something like a Roman dictator. 
He is in quiet times no stronger than he was at first. Now 
and then he has seemed weaker. Congress has occasionally 
encroached on him, but at other times the country has given its 
confidence to the Man as against the Assembly. With a succes¬ 
sion of strong and popular Presidents this might tend to become 
a habit. Needless to say that history has shown how the office 
may in the hands of a trusted leader and at the call of a sudden 
necessity, rise to a tremendous height. 

The ministers of the President have not become more im¬ 
portant either singly or collectively as a cabinet. Cut off from 
the legislature on one side, and from the people on the other, 
they have been a mere appendage to the President. 

The Senate has come to press heavily on the Executive, and 
at the same time has developed legislative functions which, 
though contemplated in the Constitution, were comparatively 
rudimentary in the older days. It has, in the judgment of 
American publicists, grown relatively stronger than it then 
was, but it is not more trusted by the people. 

The Vice-President of the United States has become even 
more insignificant than the Constitution seemed to make him. 

On the other hand, the Speaker of the House of Representatives, 
whom the Constitution mentions only once, and on whom it 
bestows no powers, long held one of the leading parts in the 
piece, and could for many years prior to 1910 affect the course 
of legislation more than any other single person. 

An oligarchy of chairmen of the leading committees has 
sprung up in both Houses as a consequence of the increasing 
demands on their time as well as of the working of the com¬ 
mittee system. 



CHAP. XXXV 


CONSTITUTIONAL DEVELOPMENT 


403 


The Judiciary was deemed to be making large strides during 
the first forty years, because it established its claim to powers 
which, though doubtless really granted, had been but faintly 
apprehended in 1789. After 1830 the development of those 
powers advanced more slowly. But the position which the 
Supreme court has taken in the scheme of government, if it be 
not greater than the framers of the Constitution would have 
wished, is yet greater than they foresaw. 

Although some of these changes are considerable, they are 
far smaller than those which England has seen pass over her 
Government since 1789. So far, therefore, the Rigid Constitu¬ 
tion has maintained a sort of equilibrium between the various 
powers, whereas that which was then supposed to exist in 
England between the king, the peers, the House of Commons, 
and the people (i.e. the electors) has vanished irrecoverably. 

In the other struggle that has gone on in America, that be¬ 
tween the National government and the States, the results 
have been still more considerable, though the process of change 
has sometimes been interrupted. During the first few decades 
after 1789 the States, in spite of a steady and often angry re¬ 
sistance, sometimes backed by threats of secession, found them¬ 
selves more and more entangled in the network of Federal 
powers which sometimes Congress, sometimes the President, 
sometimes the Judiciary, as the expounder of the Constitution, 
flung over them. Provisions of the Constitution whose bear¬ 
ing had been inadequately realized in the first instance were 
put in force against a State, and when once put in force be¬ 
came precedents for the future. It is instructive to observe 
that this was done by both of the great national parties, by 
those who defended State rights and preached State sover¬ 
eignty as well as by the advocates of a strong central govern¬ 
ment. For the former, when they saw the opportunity of 
effecting by means of the central legislative or executive power 
an object of immediate party importance, did not hesitate to 
put in force that central power, forgetful or heedless of the 
example they were setting. 

It is for this reason that the process by which the National 
government has grown may be called a natural one. A politi¬ 
cal force has, like a heated gas, a natural tendency to expan¬ 
sion, a tendency which works even apart from the knowledge 
and intentions of those through whom it works. In the proc- 



404 


THE NATIONAL GOVERNMENT 


PART 1 


ess of expansion such a force may meet, and may be checked 
or driven back by a stronger force. The expansive force of 
the National government proved ultimately stronger than the 
force of the States, so the centralizing tendency prevailed. 
And it prevailed not so much by the conscious purpose of the 
party disposed to favour it, as through the inherent elements 
of strength which it possessed, and the favouring conditions 
amid which it acted, elements and conditions largely irrespec¬ 
tive of either political party, and operative under the suprem¬ 
acy of the one as well as of the other. Now and then the cen¬ 
tralizing process was checked. Georgia defied the Supreme 
court in 1830-32, and was not made to bend because the execu¬ 
tive sided with her. South Carolina defied Congress and the 
President in 1832, and the issue was settled by a compromise. 
Acute foreign observers then and often during the period that 
followed predicted the dissolution of the Union. For some 
years before the outbreak of the Civil War the tie of obedience 
to the National government was palpably loosened over a large 
part of the country. But during and after the war the former 
tendency resumed its action, swifter and more potent than 
before. 

A critic may object to the view here presented by remarking 
that the struggle between the National government and the 
States has not, as in the case of the struggles between differ¬ 
ent branches of the National government, proceeded merely by 
the natural development of the Constitution, but has been accel¬ 
erated by specific changes in the Constitution, viz. those made 
by the three latest amendments. 

• This is true. But the dominance of the centralizing tenden¬ 
cies is not wholly or even mainly due to those amendments. It 
had begun before them. It would have come about, though 
less completely, without them. It has been due not only to 
these amendments but also — 

To the extensive interpretation by the judiciary of the powers 
which the Constitution vests in the National government. 

To the passing by Congress of statutes on topics not exclu¬ 
sively reserved to the States, statutes which have sensibly 
narrowed the field of State action. 

To exertions of executive power which, having been approved 
by the people, and not condemned by the courts, have 
passed into precedents. 



CHAP. XXXV 


CONSTITUTIONAL DEVELOPMENT 


405 


These have been the modes in which the centralizing ten¬ 
dency has shown itself and prevailed. What have been the 
underlying causes ? 

They belong to history. They are partly economical, partly 
moral. Steam and electricity have knit the various parts of 
the country closely together, have made each State and group 
of States more dependent on its neighbours, have added to the 
matters in which the whole country benefits by joint action and 
uniform legislation. The power of the National government 
to stimulate or depress commerce and industries by legislation, 
whether in matters of currency and finance, or on the tariff, or 
on the means of transportation, has given it a wide control over 
the material prosperity of the Union, till “the people, and espe¬ 
cially the trading and manufacturing classes, came to look more 
and more to the national capital for what enlists their interests, 
and less and less to the capital of their own State. ... It is 
the nation and not the State that is present to the imagination 
of the citizens as sovereign, even in the States of Jefferson and 
Calhoun. . . . The Constitution as it is, and the Union as it 
was, can no longer be the party watchword. There is a new 
Union, with new grand features, but with new engrafted evils.” 1 
There has grown up a pride in the national flag, and in the 
National government as representing national unity. In the 
North there is gratitude to that government as the power that 
saved the Union in the Civil War; in the South a sense of the 
strength which Congress and the President then exerted; in 
both a recollection of the immense scope which the war powers 
took and might take again. All over the country there is a 
great army of Federal office-holders who look to Washington 
as the centre of their hopes and fears. As the modes in and 
by which these and other similar causes can work are evi¬ 
dently not exhausted, it is clear that the development of the 
Constitution as between the nation and the States has not yet 
stopped, and present appearances suggest that the centralizing 
tendency will continue to prevail. 

How does the inquiry we have been conducting affect the 
judgment to be passed upon the worth of rigid constitutions, 
i.e. of written instruments of government emanating from an 
authority superior to that of the ordinary legislature ? The 
question is a grave one for European countries, which seem to 

1 Cooley, History of Michigan. 



406 


THE NATIONAL GOVERNMENT 


PART I 


be passing from the older or Flexible to the newer or Rigid type 
of constitutions. 

A European reader who has followed the facts stated in the 
last foregoing chapters may be inclined to dismiss the question 
summarily. “Rigid Constitutions,” he will say, “are on your 
own showing a delusion and a sham. The American Constitu¬ 
tion has been changed, is being changed, will continue to be 
changed, by interpretation and usage. It is not what it was 
even thirty years ago ; who can tell what it will be thirty years 
hence ? If its transformations are less swift than those of the 
English Constitution, this is only because England has not 
even yet so completely democratized herself as had America 
nearly a century ago, and therefore there has been more 
room for change in England. If the existence of the funda¬ 
mental Constitution did not prevent violent stretches of execu¬ 
tive power during the war, and of legislative power after as 
well as during the war, will not its paper guarantees be trodden 
under foot more recklessly the next time a crisis arrives? It 
was intended to protect not only the States against the central 
government, not only each branch of the government against 
the other branches, but the people against themselves, that is 
to say, the people as a whole against the impulses of a tran¬ 
sient majority. What becomes of this protection when you 
admit that even the Supreme court is influenced by public 
opinion, which is only another name for the reigning sentiment 
of the moment? If every one of the checks and safeguards 
contained in the document may be overset, if all taken together 
may be overset, where are the boasted guarantees of the fun¬ 
damental laws? Evidently it stands only because it is not at 
present assailed. It is like the walls of Jericho, tall and stately, 
but ready to fall at the blast of the trumpet. It is worse than 
a delusion : it is a snare; for it lulls the nation into a fancied 
security, seeming to promise a stability for the institutions of 
government, and a respect for the rights of the individual, 
which are in fact baseless. A flexible constitution like that 
of England is really safer, because it practises no similar deceit, 
but by warning good citizens that the welfare of the common¬ 
wealth depends always on themselves and themselves only, 
stimulates them to constant efforts for the maintenance of their 
own rights and the deepest interests of society.” 

This statement of the case errs as much in one direction b^ 





CHAP. XXXV 


CONSTITUTIONAL DEVELOPMENT 


407 


undervaluing, as common opinion errs by overvaluing, the sta¬ 
bility of rigid constitutions. They do not perform all that the 
solemnity of their wording promises. But they are not there¬ 
fore useless. 

To expect any form of words, however weightily conceived, 
with whatever sanctions enacted, permanently to restrain the 
passions and interests of men is to expect the impossible. Be¬ 
yond a certain point, you cannot protect the people against 
themselves any more than you can, to use a familiar American 
expression, lift yourself from the ground by your own boot¬ 
straps. Laws sanctioned by the overwhelming physical power 
of a despot, laws sanctioned by supernatural terrors whose 
reality no one doubted, have failed to restrain those passions 
in ages of slavery and superstition. The world is not so much 
advanced that in this age laws, even the best and most vener¬ 
able laws, will of themselves command obedience. Constitu¬ 
tions which in quiet times change gradually, peacefully, almost 
imperceptibly, must in times of revolution be changed more 
boldly, some provisions being sacrificed for the sake of the rest, 
as mariners throw overboard part of the cargo in a storm 
in order to save the other part with the ship herself. To cling 
to the letter of a Constitution when the welfare of the country 
for whose sake the Constitution exists is at stake, would be to 
seek to preserve life at the cost of all that makes life worth 
having — propter vitam vivendi perdere causas. 

Nevertheless the rigid Constitution of the United States has 
rendered, and renders now, inestimable services. It opposes 
obstacles to rash and hasty change. It secures time for deliber¬ 
ation. It forces the people to think seriously before they alter 
it or pardon a transgression of it. It makes legislatures and 
statesmen slow to overpass their legal powers, slow even to 
propose measures which the Constitution seems to disapprove. 
It tends to render the inevitable process of modification gradual 
and tentative, the result of admitted and growing necessities 
rather than of restless impatience. It altogether prevents some 
changes which a temporary majority may clamour for, but 
which will have ceased to be demanded before the barriers 
interposed by the Constitution have been overcome. 

It does still more than this. It forms the mind and temper of 
the people. It strengthens their conservative instincts, their 
sense of the value of stability and permanence in political 



408 


THE NATIONAL GOVERNMENT 


PART 


arrangements. It trains them to habits of legality as the law 
of the Twelve Tables trained the minds of the educated Romans. 
It makes them feel that to comprehend their supreme instru¬ 
ment of government is a personal duty, incumbent on each one 
of them. It familiarizes them with, it attaches them by ties of 
pride and reverence to, those fundamental truths on which the 
Constitution is based. 

These are enormous services to render to any free country, 
but above all to one which, more than any other, is governed 
not by the men of rank or wealth or special wisdom, but by 
public opinion, that is to say, by the ideas and feelings of the 
people at large. In no country were swift political changes so 
much to be apprehended, because nowhere has material growth 
been so rapid and immigration so enormous. In none might 
the political character of the people have seemed more likely 
to be bold and prone to innovation, because their national 
existence began with a revolution, which even now lies hardly 
a century and a half behind. That none has ripened into a 
more prudently conservative temper may be largely ascribed 
to the influence of the famous instrument of 1789, which, en¬ 
acted by and for a new republic, summed up so much of what 
was best in the laws and customs of an ancient monarchy. 



PART II 


THE STATE GOVERNMENTS 




CHAPTER XXXVI 


NATURE OF THE AMERICAN STATE 

From the study of the National Government, we may go on 
to examine that of the several States which make up the Union. 
This is the part of the American political system which has re¬ 
ceived least attention both from foreign and from native writers. 
Finding in the Federal president, cabinet, and Congress a 
government superficially resembling those of their own coun¬ 
tries, and seeing the Federal authority alone active in inter¬ 
national relations, Europeans have forgotten and practically 
ignored the State Governments to which their own experi¬ 
ence supplies few parallels, and on whose workings the in¬ 
telligence published on their side of the ocean seldom throws 
light. Even the European traveller who makes the five days’ run 
across the American continent, from New York or Philadelphia 
via Chicago to San Francisco, though he passes in his journey 
of 3000 miles over the territories of eleven self-governing com¬ 
monwealths, hardly notices the fact. He uses one coinage 
and one post-office; he is stopped by no custom-houses; he 
sees no officials in a State livery; he thinks no more of the 
difference of jurisdictions than the passenger from London to 
Liverpool does of the counties traversed by the line of the 
North-Western Railway. So, too, our best informed English 
writers on the science of politics, while discussing copiously 
the relation of the American States to the central authority, 
have failed to draw on the fund of instruction which lies in 
the study of the State Governments themselves. Mill in his 
Representative Government scarcely refers to them. Mr. Free¬ 
man in his learned essays, Sir. H. Maine in his ingenious book 
on Popular Government, pass by phenomena which would have 
admirably illustrated some of their reasonings. 

American publicists, on the other hand, were usually too much 
absorbed in the study of the Federal system to bestow much 
thought on the State governments. The latter seem to them the 
most simple and obvious things in the world, while the former, 

411 


412 


THE STATE GOVERNMENTS 


PART II 


which has been the battle-ground of their political parties for 
more than a century, excites the keenest interest, and is indeed 
regarded as a sort of mystery, on which all the resources of 
their metaphysical subtlety and legal knowledge may well be 
expended. Thus while the dogmas of State sovereignty and State 
rights, made practical by the great struggle over slavery, were 
discussed with extraordinary zeal and acumen by three genera¬ 
tions of men, the character, power, and working of the States 
as separate self-governing bodies received little attention or 
illustration. Yet they are full of interest; and he who would 
understand the changes that have passed on the American 
democracy will find far more instruction in a study of the State 
governments than of the Federal Constitution. The materials 
for this study are unfortunately, at least to a European, either 
inaccessible or unmanageable. They consist of constitutions, 
statutes, the records of the debates and proceedings of consti¬ 
tutional conventions and legislatures, the reports of officials 
and commissioners, together with that continuous transcript 
and picture of current public opinion which the files of news¬ 
papers supply. Of these sources only one, the constitutions, 
is practically available to an European writer. To be able 
to use the rest one must go to the State and devote one’s self 
there to these original authorities, correcting them, where 
possible, by the recollections of living men. It might have 
been expected that in most of the States, or at least of the 
older States, persons would have been found to write politi¬ 
cal, and not merely antiquarian or genealogical, State histo¬ 
ries, describing the political career of their respective commu¬ 
nities, and discussing the questions on which political contests 
have turned. But this was not (except in a very few cases) 
attempted till near the end of the nineteenth century, so that 
the European enquirer found a scanty measure of the assistance 
which he would naturally have expected from previous labourers 
in this field. I call it a field : it was till lately rather a prime¬ 
val forest, where the vegetation is rank, and through which even 
now but few trails have been cut. The new historical school 
which is growing up at the leading American universities, and 
has already investigated the colonial period with so much 
thoroughness, has now begun to grapple with this task; 1 in the 

1 Since this book was first published (in 1888) much excellent work has been 
done on State history all over the country, and State Constitutions have re¬ 
ceived much study. 



chap, xxxvi NATURE OF THE AMERICAN STATE 


413 


meantime, the difficulties I have stated must be my excuse for 
treating this branch of my subject with a brevity out of propor¬ 
tion to its interest and importance. It is better to endeavour 
to bring into relief a few leading features than to attempt a 
detailed account which would run to inordinate length. 

The American State is a peculiar organism, unlike anything 
in modern Europe, or in the ancient world. The nearest 
parallel is to be found in the cantons of Switzerland, the 
Switzerland of our own day, for until 1815, if one ought not 
rather to say until 1848, Switzerland was not so much a nation 
or a state as a league of neighbour commonwealths. But 
Europe so persistently ignores the history of Switzerland, that 
most instructive patent museum of politics, apparently only 
because she is a small country, and because people go there to 
see lakes and to climb mountains, that I should perplex instead 
of enlightening the reader by attempting to illustrate American 
from Swiss phenomena. 

Let me attempt to sketch the American States as separate 
political entities, forgetting for the moment that they are also 
parts of a Federation. 

The admission, under a Statute of 1910, of two new States 1 
brought the number of States in the American Union up to 
forty-eight, varying in size from Texas, with an area of 265,780 
square miles, to Rhode Island, with an area of 1250 square 
miles; and in population from New York, with over 9,000,000 
inhabitants, to Nevada, with 81,000. That is to say, the 
largest State is much larger than either France or the Germanic 
Empire ; the most populous much more populous than Sweden, 
or Portugal, or Denmark, while the smallest is smaller than 
Warwickshire or Corsica, and the least populous less populous 
than the city of York, or the town of Reading in Berks. 
Considering not only these differences of size, but the differ¬ 
ences in the density of population (which in Nevada is .7 and 
in Wyoming 1.5 to the square mile, while in Rhode Island it is 
508.5 and in Massachusetts 418.8 to the square mile); in its 
character 2 (in South Carolina the blacks are 835,843 against 
679,161 whites, in Mississippi 1,009,487 against 786,111 whites); 
in its birthplace (in North Carolina the foreign-born per¬ 
sons are less than of the population, in California, nearly 
one-third, in North Dakota more than one-half); in the occu- 
1 Arizona and New Mexico. 2 Census of 1900. 



414 


THE STATE GOVERNMENTS 


PART II 


pations of the people, in the amount of accumulated wealth, in 
the proportion of educated persons to the rest of the com¬ 
munity, — it is plain that immense differences might be looked 
for between the aspects of politics and conduct of government 
in one State and in another. 

Be it also remembered that the older colonies had different 
historical origins. Virginia and North Carolina were unlike 
Massachusetts and Connecticut; New York, Pennsylvania, and 
Maryland different from both; while in recent times the stream 
of European immigration has filled some States with Irishmen, 
others with Germans or Italians, others with Scandinavians or 
Poles, and has left most of the Southern States all but un¬ 
touched. 

Nevertheless, the form of government is in its main outlines, 
and to a large extent even in its actual working, the same in all 
these forty-eight republics, and the differences, instructive as 
they are, relate to points of secondary consequence. 

The States fall naturally into five groups : — 

The New England States — Massachusetts, Connecticut, 
Rhode Island, New Hampshire, Vermont, Maine. 

The Middle States — New York, New Jersey, Pennsylvania, 
Delaware, 1 Maryland, Ohio, Indiana. 2 

The Southern, or old Slave States — Virginia, West Vir¬ 
ginia (separated from Virginia during the war), North 
Carolina, South Carolina, Georgia, Alabama, Florida, 
Kentucky, Tennessee, Mississippi, Louisiana, Arkansas, 
Missouri, Texas, Oklahoma, New Mexico (these two last, 
however, formed long after the extinction of slavery). 

The North-Western States — Michigan, Illinois, Wisconsin, 
Minnesota, Iowa, Nebraska, Kansas, Colorado, North 
Dakota, South Dakota, Wyoming, Montana, Idaho. 

The Pacific States — California, Nevada, Arizona, Utah, 
Oregon, Washington. 

Each of these groups has something distinctive in the charac¬ 
ter of its inhabitants, which is reflected, though more faintly now 
than formerly, in the character of its government and politics. 

1 Delaware and Maryland were Slave States, but did not secede, and are in 
some respects to be classed rather with the Middle than with the Southern 
group, as indeed are West Virginia, Missouri, and Oklahoma (this last really 
Western in character), perhaps even Tennessee and Kentucky. 

2 Ohio has become, and Indiana is becoming, rather Middle than Western, 
and the former at least cannot now be classed among Western States. 



chap, xxxvi NATURE OF THE AMERICAN STATE 


415 


New England is the old home of Puritanism, the traces 
whereof, though waning under the influence of Irish and French 
Canadian immigration, are not yet extinct/ The Southern 
States will long retain the imprint of slavery, not merely in 
the presence of a host of negroes, but in the backwardness of 
the poor white population, and in certain attributes, laudable 
as well as regrettable, of the upper class. The North-West is 
the land of hopefulness, and consequently of bold experiments 
in legislation : its rural inhabitants have the honesty and some¬ 
what limited horizon of agriculturists. The Pacific West, or 
rather California and Nevada, for Oregon and Washington be¬ 
long in point of character quite as much to the North-Western 
group, tinges the energy and sanguine good nature of the 
Westerners with a speculative recklessness natural to mining 
communities, where great fortunes have rapidly grown and van¬ 
ished, and into which elements have been suddenly swept to¬ 
gether from every part of the world, as a Rocky Mountain 
rainstorm fills the bottom of a valley with sand and pebbles 
from all the surrounding heights. 

As the dissimilarity of population and of external conditions 
seems to make for a diversity of constitutional and political 
arrangements between the States, so also does the large meas¬ 
ure of legal independence which each of them enjoys under 
the Federal Constitution. No State can, as a common¬ 
wealth, politically deal with or act upon any other State. 1 No 
diplomatic relations can exist nor treaties be made between 
States, 1 no coercion can be exercised by one upon another. 
And although the government of the Union can act on a State, 
it rarely does act, and then only in certain strictly limited 
directions, which do not touch the inner political life of the 
commonwealth. 

Let us pass on to consider the circumstances which work for 
uniformity among the States, and work more powerfully as 
time goes on. 

He who looks at a map of the Union will be struck by the 
fact that so many of the boundary lines of the States are straight 
lines. Those lines tell the same tale as the geometrical plans 
of cities like St. Petersburg or Washington, where every street 
runs at the same angle to every other. The States are not areas 
set off by nature. Their boundaries are for the most part 

1 Except with the consent of Congress. 



416 


THE STATE GOVERNMENTS 


PART V 


not natural boundaries fixed by mountain ranges, nor even 
historical boundaries due to a series of events, but boundaries, 
purely artificial,' determined by an authority which carved 
the national territory into strips of convenient size, as a build¬ 
ing company lays out its suburban lots. Of the States sub¬ 
sequent to the original thirteen, California is the only one 
with a genuine natural frontier, finding it in the chain of the 
Sierra Nevada on the east and the Pacific ocean on the west. 
No one of these later States can be regarded as a naturally de¬ 
veloped political organism. They are trees planted by the 
forester, not self-sown with the help of the seed-scattering 
wind. This absence of physical lines of demarcation has 
tended and must tend to prevent the growth of local distinc¬ 
tions. Nature herself seems to have designed the Mississippi 
basin, as she has designed the unbroken levels of Russia, to be 
the dwelling-place of one people. 

Each State makes its own Constitution; that is, the people 
agree on their form of government for themselves, with no in¬ 
terference from the other States or from the Union. This form 
is subject to one condition only : it must be republican. 1 But 
in each State the people who make the constitution have lately 
come from other States, where they have lived under and 
worked constitutions which are to their eyes the natural and 
almost necessary model for their new State to follow; and in 
the absence of an inventive spirit among the citizens, it was 
the obvious course for the newer States to copy the organi¬ 
zations of the older States, especially as these agreed with cer¬ 
tain familiar features of the Federal Constitution. Hence the 
outlines, and even the phrases of the elder constitutions reap¬ 
pear in those of the more recently formed States. The prece¬ 
dents set by Virginia, for instance, had much influence on 
Tennessee, Alabama, Mississippi, and Florida, when they were 
engaged in making or amending their constitutions during the 
early part of this century. 

Nowhere is population in such constant movement as in 
America. In some States more than one-fourth of the inhabit¬ 
ants are foreign born. Many of the townsfolk, not a few even 

1 The case of Kansas immediately before the War of Secession, and the cases 
of the rebel States, which were not readmitted after the war till they had ac¬ 
cepted the constitutional amendments forbidding slavery and protecting the 
freedmen are quite exceptional. 

As to any special conditions imposed by Congress, see Chap. XXXVII. post. 



chap, xxxvi NATURE OF THE AMERICAN STATE 4U 


of the farmers, have been till lately citizens of some other 
State, and will, perhaps, soon move on farther west. The 
Western States in particular are like a chain of lakes through 
which there flows a stream which mingles the waters of the 
higher with those of the lower. In such a constant flux of 
population local peculiarities are not readily developed, or if 
they have grown up when the district was still isolated, they 
disappear as the country becomes filled. Each State takes 
from its neighbours and gives to its neighbours, so that the 
process of assimilation is always going on over the whole wide 
area. 

Still more important is the influence of railway communica¬ 
tion, of newspapers, of the telegraph. A Greek city like Samos 
or Mitylene, holding her own island, preserved a distinctive 
character in spite of commercial intercourse and the sway 
of Athens. A Swiss canton like Uri or Appenzell, entrenched 
behind its mountain ramparts, remains, even now under the 
strengthened central government of the Swiss nation, unlike 
its neighbours of the lower country. But an American State 
traversed by great trunk lines of railway, and depending on 
the markets of the Atlantic cities and of Europe for the sale 
of its grain, cattle, bacon, and minerals, is attached by a hun¬ 
dred always tightening ties to other States, and touched by 
their weal or woe as nearly as by what befalls within its own 
limits. The leading newspapers are read over a vast area. 
The inhabitants of each State know every morning the events 
of yesterday over the whole Union. 

Finally the political parties are the same in all the States. 
The tenets (if any) of each party are (with some slight excep¬ 
tions) the same everywhere, their methods the same, their 
leaders the same, although of course a prominent man enjoys 
especial influence in his own State. Hence, State politics are 
largely swayed by forces and motives external to the particu¬ 
lar State, and common to the whole country, or to great sec¬ 
tions of it; and the growth of local parties, the emergence 
of local issues and development of local political schemes, are 
correspondingly restrained. 

These considerations explain why the States, notwithstand¬ 
ing the original diversities between some of them, and the 
wide scope for political divergence which they all enjoy under 
the Federal Constitution, are so much less dissimilar and less 
2e 



418 


THE STATE GOVERNMENTS 


PART a 


peculiar than might have been expected. European statesmen 
have of late years been accustomed to think of federalism and 
local autonomy as convenient methods either for recognizing 
and giving free scope to the sentiment of nationality which 
may exist in any part of an empire, or for meeting the need 
for local institutions and distinct legislation which may arise 
from differences between such a part and the rest of the em¬ 
pire. It is one or other or both of these reasons that moved 
statesmen in such cases as those of Finland in her relations 
to Russia, Hungary in her relations to the rest of the Austro- 
Hungarian monarchy, Iceland in her relations to Denmark, 
Bulgaria in her relations to the Turkish Sultan, Ireland in her 
relations to Great Britain. But the final causes, so to speak, of 
the recognition of the States of the American Union as autono¬ 
mous commonwealths, have been different. Their self-govern¬ 
ment is not the consequence of differences which can be made 
harmless to the whole body politic only by being allowed free 
course. It has been due primarily to the historical fact that they 
existed as commonwealths before the Union came into being; 
secondarily, to the belief that localized government is the best 
guarantee for civic freedom, and to a sense of the difficulty of 
administering a vast territory and population from one centre 
and by one government. 

I return to indicate the points in which the legal indepen¬ 
dence and right of self-government of the several States ap¬ 
pears. Each has its own — 

Constitution (whereof more anon). 

Executive, consisting of a governor, and various other officials. 

Legislature of two Houses. 

System of local government in counties, cities, townships, 
and school districts. 

System of State and local taxation. 

Debts, which it may repudiate at its own pleasure. 

Body of private law, including the whole law of real and 
personal property, of contracts, of torts, of crimes, and 
of family relations. 

System of procedure, civil and criminal. 

Court, from which no appeal lies (except in cases touching 
Federal legislation or the Federal constitution) to any 
Federal court. 

Citizenship, which may admit persons (e.g. recent immi- 



chap, xxxvi NATURE OF THE AMERICAN STATE 


410 


grants) to certain privileges of citizens at times, or on con¬ 
ditions, wholly different from those prescribed by other 
States. 

Three points deserve to be noted as illustrating what these 
attributes include. 

I. A man gains active citizenship of the United States ( i.e . 
a share in the government of the Union) only by becoming 
a voting citizen of some particular ’ State. Being such, he is 
forthwith entitled to the national franchise. That is to say, 
voting power in the State carries voting power in Federal 
elections, and however lax a State may be in its grant of such 
power, e.g. to foreigners just landed or to persons convicted 
of crime, these State voters will have the right of voting in 
congressional and presidential elections . 1 The only restriction 
on the States in this matter is that of the fourteenth and fifteenth 
Constitutional amendments, which have already been discussed. 
They were intended to secure equal treatment to the negroes, 
and incidentally they declare the protection given to all citizens 
of the United States . 2 Whether they really enlarge it, that is to 

1 Congress has power to pass a uniform rule of naturalization (Const. Art. 

i. § S). 

Under the present naturalization laws a foreigner must have resided in the 
United States for five years, and for one year in the State or Territory where 
he seeks admission to United States citizenship, and must declare two years 
before he is admitted that he intends to renounce allegiance to any foreign prince 
or state. Before being admitted he must have taken an oath of renunciation. 
Naturalization makes him a citizen not only of the United States but of the 
State or Territory where he is admitted, but does not necessarily confer the 
electoral franchise, for that depends on State laws. 

In more than a third of the States the electoral franchise is now enjoyed by 
persons not naturalized as United States citizens. 

2 “The line of distinction between the privileges and immunities of citizens 
of the United States, and those of citizens of the several States, must be traced 
along the boundary of their respective spheres of action, and the two classes 
must be as different in their nature as are the functions of their respective gov¬ 
ernments. A citizen of the United States as such has a right to participate in 
foreign and inter-state commerce, to have the benefit of the postal laws, to make 
use in common with others of the navigable waters of the United States, and to 
pass from State to State, and into foreign countries, because over all these sub¬ 
jects the jurisdiction of the United States extends, and they are covered by its 
laws. The privileges suggest the immunities. Wherever it is the duty of the 
United States to give protection to a citizen against any harm, inconvenience, 
or deprivation, the citizen is entitled to an immunity which pertains to Federal 
citizenship. One very plain immunity is exemption from any tax, burden, or 
imposition under State laws as a condition to the enjoyment of any right or 
privilege under the laws of the United States. . . . Whatever one may claim as 
of right under the Constitution and laws of the United States by virtue of his 



420 


THE STATE GOVERNMENTS 


PART II 


say, whether it did not exist by implication before, is a legal 
question not needing to be discussed here. 

II. The power of a State over all communities within its 
limits is absolute. It may grant or refuse local government as 
it pleases. The population of the city of Providence is nearly 
one-half of that of the State of Rhode Island, and that of New 
York City about one-half of that of the State of New York. 
But the State might in either case extinguish the municipality, 
and govern the city by a single State commissioner appointed 
for the purpose, or leave it without any government whatever. 
The city would have no right of complaint to the Federal 
President or Congress against such a measure. Massachusetts 
remodelled the city government of Boston just as the British 
Parliament might remodel that of Birmingham and once 
superseded the city government of Chelsea by appointing a 
sort of temporary dictator to administer it for a time. Let 
an Englishman imagine a. county council for Warwickshire 
suppressing the municipality of Birmingham, or a Frenchman 
imagine the department of the Rhone extinguishing the munici¬ 
pality of Lyons, with no possibility of intervention by the central 
authority, and he will measure the difference between the Amer¬ 
ican States and the local governments of Western Europe. 

III. A State commands the allegiance of its citizens, and 
may punish them for treason against it. The power has rarely 
been exercised, but its undoubted legal existence had much 
to do with inducing the citizens of the Southern States to 
follow their governments into secession in 1861. They conceived 
themselves to owe allegiance to the State as well as to the Union, 
and when it became impossible to preserve both, because the 
State had declared its secession from the Union, they might 
hold the earlier and nearer authority to be paramount. Al¬ 
legiance to the State must now, since the war, be taken to be 
subordinate to allegiance to the Union. But allegiance to the 

citizenship, is a privilege of a citizen of the United States. Whatever the 
Constitution and laws of the United States entitle him to exemption from, he 
may claim an exemption in respect to. And such a right or privilege is abridged 
whenever the State law interferes with any legitimate operation of Federal 
authority which concerns his interest, whether it be an authority actively 
exerted, or resting only in the express or implied command or assurance of the 
Federal Constitution or law. But the United States can neither grant nor 
secure to its citizens rights or privileges which are not expressly or by reason¬ 
able implication placed under its jurisdiction, and all not so placed are left to 
the exclusive protection of the States,” — Cooley, Principles, pp. 245-247. 



chap, xxxvi NATURE OF THE AMERICAN STATE 


421 


State still exists; treason against the State is still possible. 
One cannot think of treason against Warwickshire or the depart¬ 
ment of the Rhone. 

These are illustrations of the doctrine which Europeans 
often fail to grasp, that the American States were originally in 
a certain sense, and still for certain purposes remain, sovereign 
States. Each of the original thirteen became sovereign (so far 
as its domestic affairs were concerned, though not as respects 
international relations) when it revolted from the mother coun¬ 
try in 1776. By entering the Confederation of 1781-88 it parted 
with one or two of the attributes of sovereignty, by accept¬ 
ing the Federal Constitution in 1788-91 it subjected itself for 
certain specified purposes to a central government, but claimed 
to retain its sovereignty for all other purposes. That is to 
say, the authority of a State is an inherent, not a delegated, 
authority. It has all the powers which any independent 
government can have, except such as it can be affirmatively 
shown to have stripped itself of, while the Federal Government 
has only such powers as it can be affirmatively shown to have 
received. To use the legal expression, the presumption is always 
for a State, and the burden of proof lies upon any one who denies 
its authority in a particular matter. 1 

What State sovereignty means and includes was a question 
which incessantly engaged the most active legal and political 
minds of the nation, from 1789 down to 1870. Some thought 
it paramount to the rights of the Union. Some considered it 
as held in suspense by the Constitution, but capable of reviving 
as soon as a State should desire to separate from the Union. 
Some maintained that each State had in accepting the Con¬ 
stitution finally renounced its sovereignty, which thereafter 
existed only in the sense of such an undefined domestic legis¬ 
lative and administrative authority as had not been conferred 

1 As the colonies had associated themselves into a league at the very time at 
which they revolted from the British Crown, and as their foreign relations 
were always managed by the authority and organs of this league, no one of 
them ever acted in international affairs as a free and independent sovereign 
State. Abraham Lincoln was in this sense justified in saying that the Union was 
older than the States, and had created them as States. But what are we to say 
of North Carolina and Rhode Island, after, the acceptance of the Constitution of 
1787-89 by the other eleven States ? They were out of the old Confederation, 
for it had expired. They were not in the new Union, for they refused during 
many months to enter it. What else can they have been during those months 
except sovereign commonwealths? 



422 


THE STATE GOVERNMENTS 


PART II 


upon Congress. The conflict of these views, which became 
acute in 1830 when South Carolina claimed the right of nulli¬ 
fication, produced Secession and the war of 1861-65. Since 
the defeat of the Secessionists, the last of these views may 
be deemed to have been established, and the term “State sov¬ 
ereignty” is now but seldom heard. Even “ States’ rights” 
have a different meaning from that which they had before the 
War of Secession. 1 

A European who now looks calmly back on this tremendous 
controversy of tongue, pen, and sword, will be apt to express 
his ideas of it in the following way. He will remark that much 
of • the obscurity and perplexity arose from confounding the 
sovereignty of the American nation with the sovereignty of the 
Federal Government. The Federal Government clearly was 
sovereign only for certain purposes, i.e. only in so far as it had 
received specified powers from the Constitution. These powers 
did not, and in strict legal construction do not now, abrogate 
the supremacy of the States in their proper sphere. A State 
still possesses one important attribute of sovereignty — im¬ 
munity from being sued except by another State. But the 
American nation which had made the Constitution, had done 
so in respect of its own sovereignty, and might well be deemed 
to retain that sovereignty as paramount to any rights of the 
States. The feeling of this ultimate supremacy of the nation 
was what swayed the minds of those who resisted Secession, just 
as the equally well-grounded persuasion of the limited character 
of the National or Federal Government satisfied the conscience 
of the seceding South. 

The Constitution of 1789 was a compromise, and a compro¬ 
mise arrived at by allowing contradictory propositions to be 
represented as both true. It has been compared to the declara¬ 
tions made with so much energy and precision of language in 
the ancient hymn Quicunque Vult, where, however, the appar¬ 
ent contradiction has always been held to seem a contradiction 
only because the human intellect is unequal to the comprehen¬ 
sion of such profound mysteries. To every one who urged 
that there were thirteen States, and therefore thirteen govern¬ 
ments, it was answered, and truly, that there was one gov- 

1 States’ rights was a watchword in the South for many years. In 1851 there 
was a student at Harvard College from South Carolina who bore the name of 
States Rights Gist, baptized, so to speak, into Calhounism. He rose to be a 
brigadier-general in the Confederate army, and fell in the Civil "Wai 



chap, xxxvi NATURE OF THE AMERICAN STATE 


423 


ernment, because the people were one. To every one who 
declared that there was one government, it was answered with 
no less truth that there were thirteen. Thus counsel was 
darkened by words without knowledge; the question went off 
into metaphysics, and found no end, in wandering mazes lost. 

There was, in fact, a divergence between the technical and 
the practical aspects of the question. Technically, the seced¬ 
ing States had an arguable case; and if the point had been one 
to be decided on the construction of the Constitution as a court 
decides on the construction of a commercial contract, they 
were possibly entitled to judgment. Practically, the defenders 
of the Union stood on firmer ground, because circumstances 
had so changed since 1789 as to make the nation more com¬ 
pletely one nation than it then was, and had so involved the 
fortunes of the majority which held to the Union with those 
of the minority seeking to depart that the majority might 
feel justified in forbidding their departure. Stripped of legal 
technicalities, the dispute resolved itself into the problem often 
proposed but capable of no general solution : When is a majority 
entitled to use force for the sake of retaining a minority in the 
same political body with itself? To this question, when it 
appears in a concrete shape, as to the similar question when 
an insurrection is justifiable, an answer can seldom be given 
beforehand. The result decides. When treason prospers, none 
dare call it treason. 

The Constitution, which had rendered many services to the 
American people, did them an inevitable dis-service when it 
fixed their minds on the legal aspects of the question. Law 
was meant to be the servant of politics, and must not be suf¬ 
fered to become the master. A case had arisen which its for¬ 
mulae were unfit to deal with, a case which was fit to be settled on 
large moral and historical grounds. It was not merely the 
superior physical force of the North that prevailed; it was the 
moral forces which rule the world, forces which had long worked 
against slavery, and were ordained to save North America from 
the curse of hostile nations established side by side. 

The word “ sovereignty/’ which has in many ways clouded 
the domain of public law and jurisprudence, confused men’s 
minds by making them assume that there must in every coun¬ 
try exist, and be discoverable by legal inquiry, either one body 
invested legally with supreme power over all minor bodies, or 



424 


THE STATE GOVERNMENTS 


PART II 


several bodies which, though they had consented to form part 
of a larger body, were each in the last resort independent of it, 
and responsible to none but themselves . 1 They forgot that a 
Constitution may not have determined where legal supremacy 
shall dwell. Where the Constitution of the United States 
placed it was at any rate doubtful, so doubtful that it would 
have been better to drop technicalities, and recognize the broad 
fact that the legal claims of the States had become incompat¬ 
ible with the historical as well as legal claims of the nation. In 
the uncertainty as to where legal right resided, it would have 
been prudent to consider where physical force resided. The 
South, however, thought herself able to resist any physical force 
which the rest of the nation might bring against her. Thus 
encouraged, she took her stand on the doctrine of States’ Rights : 
and then followed a pouring out of blood and treasure such as 
was never spent on determining a point of law before, not even 
when Edward III. and his successors waged war for a hundred 
years to establish the claim of females to inherit the crown of 
France. 

What, then, do the rights of a State now include? Every 
right or power of a Government except: — 

The right of secession (not abrogated in terms, but admitted 
since the war to be no longer claimable. It was expressly 
negatived in the recent Constitutions of several South¬ 
ern States). 

Powers which the Constitution withholds from the States 
(including that of intercourse with foreign governments). 

Powers which the Constitution expressly confers on the 
Federal Government. 

As respects some powers of the last class, however, the States 
may act concurrently with, or in default of action by, the Federal 
Government. It is only from contravention of its action that 

1 A further confusion arises from the fact that men have been apt in talking 
of sovereignty to mix up (as the Benthamite school did unfortunately) legal 
supremacy with practical predominance, sovereignty de jure with sovereignty de 
facto. They ought to go together, and law seeks to make them go together. 
But it may happen that the person or body in whom law vests supreme authority 
is unable to enforce that authority : so the legal sovereign and the actual sover¬ 
eign— that is to say, the force which will prevail in physical conflict—are differ¬ 
ent. There is always a strongest force ; but the force recognized by law may 
not be really the strongest; and of several forces it may be impossible to tell, 
till they have come into actual physical conflict, which is the strongest. This 
subject has been discussed in an essay on Sovereignty in the author’s Studies in 
History and Jurisprudence. 



chap, xxxvi NATURE OF THE AMERICAN STATE 


425 


they must abstain. And where contravention is alleged to 
exist, whether legislative or executive, it is by a court of law, 
and, in case the decision is in the first instance favourable to the 
pretensions of the State, ultimately by a Federal court, that the 
question falls to be decided . 1 

A reference to the preceding list of what each State may 
create in the way of distinct institutions will show that these 
rights practically cover nearly all the ordinary relations of 
citizens to one another and to their Government, nearly all the 
questions which have been most agitated in England and 
France of recent years. An American may, through a long 
life, never be reminded of the Federal Government, except 
when he votes at presidential and congressional elections, buys 
a package of tobacco bearing the government stamp, lodges 
a complaint against the post-office, and opens his trunks for a 
custom-house officer on the pier at New York when he returns 
from a tour in Europe. His direct taxes are paid to officials 
acting under State laws. The State, or a local authority 
constituted by State statutes, registers his birth, appoints his 
guardian, pays for his schooling, gives him a share in the estate 
of his father deceased, licenses him when he enters a trade (if 
it be one needing a licence), marries him, divorces him, entertains 
civil actions against him, fines him for overspeeding his automo¬ 
bile, declares him a bankrupt, hangs him for murder. The 
police that guard his house, the local boards which look after the 
poor, control highways, impose water rates, manage schools — 
all these derive their legal powers from his State alone. Looking 
at this immense compass of State functions, Jefferson would seem 
to have been not far wrong when he said that the Federal govern¬ 
ment was nothing more than the American department of foreign 
affairs. But although the National government touches the 
direct interests of the citizen less than does the State government, 
it touches his sentiment more. Hence the strength of his attach¬ 
ment to the former and his interest in it must not be measured 
by the frequency of his dealings with it. In the partition- 
ment of governmental functions between nation and State, the 
State gets the most but the nation the highest, so the balance 
between the two is preserved. 

Thus every American citizen lives in a duality of which 
Europeans, always excepting the Swiss, and to some extent the 
1 See Chapter XXII. ante. 



426 


THE STATE GOVERNMENTS 


PART II 


Germans, have no experience. He lives under two govern¬ 
ments and two sets of laws : he is animated by two patriotisms 
and owes two allegiances. That these should both be strong and 
rarely be in conflict is most fortunate. It is the result of skil¬ 
ful adjustment and long habit, of the fact that those whose votes 
control the two sets of governments are the same persons, but 
above all of that harmony of each set of institutions with the 
other set, a harmony due to the identity of the principles whereon 
both are founded, which makes each appear necessary to the 
stability of the other, the States to the nation as its basis, the 
National Government to the States as their protector. 



CHAPTER XXXVII 


STATE CONSTITUTIONS 

The government of each State is determined by and set 
forth in its Constitution, a comprehensive fundamental law, or 
rather group of laws included in one instrument, which has 
been directly enacted by the people of the State, and is capable 
of being repealed or altered, not by their representatives, but 
by themselves alone. As the Constitution of the United States 
stands above Congress and out of its reach, so the Constitution 
of each State stands above the legislature of that State, cannot 
be varied in any particular by the State legislature, and in¬ 
volves the invalidity of any statute passed by that legislature 
which is found to be inconsistent with it. 

The State Constitutions are the oldest things in the politi¬ 
cal history of America, for they are the continuations and rep¬ 
resentatives of the royal colonial charters, whereby the earliest 
English settlements in America were created, and under which 
their several local governments were established, subject to 
the authority of the English Crown and ultimately of the British 
Parliament. But, like most of the institutions under which 
English-speaking peoples now live, they have a pedigree which 
goes back to a time anterior to the discovery of America itself. 
It begins with the English Trade Guild of the middle ages, itself 
the child of still more ancient corporations, dating back to the 
days of imperial Rome, and formed under her imperishable law. 
Charters were granted to merchant guilds in England as far back 
as the days of King Henry I. In 1463, Edward IV. gave an elab¬ 
orate one to the Merchant Adventurers trading with Flanders. 
In it we may already discern the arrangements which are more 
fully set forth in two later charters of greater historical interest, 
the charter of Queen Elizabeth to the East India Company in 
1599, and the charter of Charles I. to the “Governor and Com¬ 
pany of the Massachusetts Bay in Newe-England” in 1628. 
Both these instruments establish and incorporate trading com- 

427 


428 


THE STATE GOVERNMENTS 


PART II 


panies, with power to implead and be impleaded, to use a com¬ 
mon seal, to possess and acquire lands, tenements and heredita¬ 
ments, with provisions for the making of ordinances for the welfare 
of the company. The Massachusetts Charter creates a frame 
of government consisting of a governor, deputy-governor, and 
eighteen assistants (the term still in use in many of the London 
city guilds), and directs them to hold four times a year a general 
meeting of the company, to be called the “greate andgenerall 
Court,” in which general court “the Governor or deputie Gov¬ 
ernor, and such of the assistants and Freemen of the Company 
as shall be present, shall have full power and authority to choose 
other persons to be free of the Company, and to elect and con¬ 
stitute such officers as they shall thinke fitt for managing the 
affaires of the saide Governor and Company, and to make Lawes 
and Ordinances for the Good and Welfare of the saide Company, 
and for the Government and Ordering of the saide Landes and 
Plantasion, and the People inhabiting and to inhabite the same, 
soe as such Lawes and Ordinances be not contrary or repug¬ 
nant to the Lawes and Statuts of this our realme of England.” 
In 1691, the charter of 1628 having been declared forfeited in 
1684, a new one was granted by King William and Queen Mary, 
and this instrument, while it retains much of the language and 
some of the character of the trade guild charter, is really a 
political frame of government for a colony. The assistants 
receive the additional title of councillors ; their number is raised 
to twenty-eight; they are to be chosen by the general court, 
and the general court itself is to consist, together with the gov¬ 
ernor and assistants, of freeholders elected by towns or places 
within the colony, the electors being persons with a forty shilling 
freehold or other property worth £40. The governor is directed 
to appoint judges, commissioners of oyer and terminer, etc.; 
the general court receives power to establish judicatories and 
courts of record, to pass laws (being not repugnant to the laws 
of England), and to provide for all necessary civil offices. An 
appeal from the courts shall always be to the King in his privy 
council. This is a true political Constitution. 1 Under it the 

1 The oldest truly political Constitution in America is the instrument called 
the Fundamental Orders of Connecticut, framed by the inhabitants of Windsor, 
Hartford, and Wethersfield in 1638, memorable year, when the ecclesiastical 
revolt of Scotland saved the liberties of England. The government of Connecti¬ 
cut was afterwards regularized by Charles II.’s charter of 1662 to “the Governor 
and Company of the English colony of Connecticut.” The agreement drawn up 



CHAP. XXXVII 


STATE CONSTITUTIONS 


429 


colony was governed, and in the main well and wisely governed, 
till 1780. Much of it, not merely its terms, such as the name 
General Court, but its solid framework, was transferred bodily 
to the Massachusetts Constitution of 1780, which is now in 
force, and which profoundly influenced the Convention that 
prepared the Federal Constitution in 1787. Yet the charter of 
1691 is nothing but an extension and development of the trading 
charter of 1628, in which there already appears, as there had 
appeared in Edward IV.’s charter of 1463, and in the East India 
Company’s charter of 1599, the provision that the power of law- 
giving, otherwise unlimited, should be restricted by the terms 
of the charter itself, which required that every law for the colony 
should be agreeable to the laws of England. We have therefore 
in the three charters which I have named, those of 1463, 1599, 
and 1628, as well as in that of 1691, the essential and capital 
characteristic of a Rigid or supreme Constitution — viz. a 
frame of government established by a superior authority, creat¬ 
ing a subordinate law-making body, which can do everything 
except violate the terms and transcend the powers of the instru¬ 
ment to which it owes its own existence. So long as the colony 
remained under the British Crown, the superior authority, 
which could amend or remake the frame of government, was the 
British Crown or Parliament. When the connection with Brit¬ 
ain was severed, that authority passed over, not to the State 
legislature, which remained limited, as it always had been, but 
to the people of the now independent commonwealth, whose will 
speaks through what is now the State Constitution, just as the 
will of the Crown or of Parliament had spoken through the 
charters of 1628 and 1691. 

I have taken the case of Massachusetts as the best example 
of the way in which the trading Company grows into a colony, 
and the colony into a State. But some of the other colonies 
furnish illustrations scarcely less apposite. The oldest of 
them all, the acorn whence the oak of English dominion in 
America has sprung, the colony of Virginia, was, by the second 

in the cabin of the Mayflower may perhaps claim to have in it the germs of a 
government. 

I am here tracing only the formal and legal growth of State Constitutions. 
Their democratic spirit and contents are largely due to the ideas with which 
the theology of the Reformers, and especially of Calvin, had filled the minds 
of the Puritan emigrants; and the ecclesiastical arrangements the latter set up 
powerfully influenced those of the nascent political communities. 



430 


THE STATE GOVERNMENTS 


PART II 


charter of 1609, established under the title of “The Treasurer 
and Company of Adventurers and Planters of the City of Lon¬ 
don for the first colony in Virginia.” 1 

Within the period of ten years, under the last of the Tudors 
and the first of the Stuarts, two trading charters were issued to 
two Companies of English adventurers. One of these charters 
is the root of English title to the East and the other to the West. 
One of these Companies has grown into the Empire of India; 
the other into the United States of North America. If England 
had done nothing else in history, she might trust for her fame 
to the work which these charters began. And the foundations 
of both dominions were laid in the age which was adorned by 
the greatest of all her creative minds, and gave birth to the men 
who set on a solid basis a frame of representative government 
which all the free nations of the modern world have copied. 

When, in 1776, the thirteen colonies threw off their allegiance 
to King George III.-, and declared themselves independent 
States, the colonial charter naturally became the State Consti¬ 
tution. 2 In most cases it was remodelled, with large altera¬ 
tions, by the revolting colony. But in three States it was 
maintained unchanged (except, of course, so far as Crown 
authority was concerned), viz. in Massachusetts till 1780, in 
Connecticut till 1818, and in Rhode Island till 1842. 3 The 
other thirty-five States admitted to the Union in addition to 

1 The phrase First colony distinguishes what afterwards became the State of 
Virginia from the more northerly parts of Virginia, afterwards called New 
England. The Second colony was to be Plymouth, one of the two settlements 
which became Massachusetts. 

2 Even in declaring herself independent, New Jersey clung to the hope that 
the mother country would return to wiser counsels, and avert the departure of 
her children. She added at the end of her Constitution of 2d July 1776 the 
following proviso: “Provided always, and it is the true intent and meaning 
of this Congress, that if a reconciliation between Great Britain and these colo¬ 
nies should take place and the latter be taken again under the protection and 
government of the Crown of Britain, this charter shall be null and void, other¬ 
wise remain firm and inviolable.” The truth is that the colonists, till alienated 
by the behaviour of England, had more kindly feelings towards her than she 
had towards them. To them she was the old home, to her they were simply 
customers. Some interesting illustrations of the views then entertained as to 
the use of colonies may be found in the famous discussion in the fourth book 
of Adam Smith’s Wealth of Nations, which appeared in 1776. 

3 Rhode Island simply passed a statute by her legislature in May 1776, sub¬ 
stituting allegiance to the colony for allegiance to the King. Connecticut 
passed the following statute: —“Be it enacted by the Governor and Council 
and House of Representatives, in general court assembled, that the ancient 
form of civil government contained in the charter from Charles II., King of 



CHAP. XXXVII 


STATE CONSTITUTIONS 


431 


the original thirteen, have a ! 1 entered it as organized self- 
governing communities, with cheir Constitutions already made 
by their respective peoples. Each Act of Congress which 
admits a new State admits it as a subsisting commonwealth, 
sometimes empowering its people to meet and enact a consti¬ 
tution for themselves (subject to conditions mentioned in the 
act), sometimes accepting and confirming a constitution already 
made by the people . 1 Congress may impose conditions which 
the State Constitution must fulfil; and in admitting the eight 
newest States has affected to retain the power of maintain¬ 
ing these conditions in force. But the authority of the State 
Constitutions does not flow from Congress, but from accept¬ 
ance by the citizens of the States for which they are made. Of 
these instruments, therefore, no less than of the Constitutions 
of the thirteen original States, we may say that although sub¬ 
sequent in date to the Federal Constitution, they are, so far 
as each State is concerned, de jure prior to it. Their authority 
over their own citizens is nowise derived from it . 2 Nor is this 

England, and adopted by the people of this State, shall be and remain the 
civil Constitution of this State, under the sole authority of the people thereof, 
independent of any king or prince whatever; and that this republic is, and 
shall for ever be and remain, a free, sovereign, and independent State, by the 
name of the State of Connecticut.” (Three paragraphs follow containing a 
short ‘‘Bill of Rights,” and securing to the inhabitants of any other of the 
United States the same law and justice as natives of the State enjoyed.) This 
is all that Connecticut thought necessary. She had possessed, as did Rhode 
Island also, the right of appointing her own governor, and therefore did not 
need to substitute any new authority for a royal governor. 

1 In the Act of 1889 for the admission of North Dakota, South Dakota, Mon¬ 
tana, and Washington, and in the Act of 1894 for the admission of Utah, and 
that of 1906 for the admission of Oklahoma, the former course, in the admission 
of Idaho and Wyoming in 1890, and of New Mexico and Arizona in 1910, the 
latter course, was followed. 

2 In practice Congress can influence the character of a State Constitution, 
because a State whose Constitution contains provisions which Congress disap¬ 
proves may be refused admission. But since the extinction of slavery and 
completion of the process of reconstruction, occasions for the serious exercise 
of such a power rarely arise. It was used to compel the seceding States to 
modify their Constitutions so as to get rid of all taint of slavery before their 
senators and representatives were readmitted to Congress after the war. Of 
course Congress is not bound to admit a community desiring to be recognized 
as a State. Utah was kept knocking at the door of the Union for many years, 
because the nation wished to retain for the purpose of preventing polygamy that 
full control which can be exercised over a Territory but not over a State. Her 
admission was accompanied by a prohibition of polygamy. Sometimes a domi¬ 
nant party postpones the admission of a State likely to strengthen by its vote 
the opposite party; and sometimes, as happened in the cases of Wyoming, 
Montana, Idaho, and New Mexico, communities whose fitness for Statehood was 
doubtful were admitted for partisan reasons. 




432 


THE STATE GOVERNMENTS 


PART II 


a mere piece of technical law. The antiquity of the older States 
as separate commonwealths, running back into the heroic ages of 
the first colonization of America and the days of the Revolution¬ 
ary War, is a potent source of the local patriotism of their in¬ 
habitants, and gives these States a sense of historic growth and 
indwelling corporate life which they could not have possessed had 
they been the mere creatures of the Federal Government. 

The State Constitutions of America well deserve to be com¬ 
pared with those of the self-governing British colonies. But 
one remarkable difference must be noted here. The constitu¬ 
tions of British colonies have all proceeded from the Imperial 
Parliament of the United Kingdom, 1 which retains its full legal 
power of legislating for every part of the British dominions. 
In many cases a colonial constitution provides that it may be 
itself altered by the colonial legislature, of course with the 
assent of the Crown; but inasmuch as in its origin it is a stat¬ 
utory constitution, not self-grown, but planted as a shoot by 
the Imperial Parliament at home, Parliament retains the legal 
power to alter or abolish it. Congress, on the other hand, has 
no power to alter a State Constitution. And whatever power of 
alteration has been granted to a British colony is exercisable by 
the colonial legislature, not, as in America, by the citizens at large. 

The original Constitutions of the States, whether of the old 
thirteen or of those subsequently admitted, have been in nearly 
every case (except those of the twelve newest States) subse¬ 
quently recast, in some instances, five, six, or even seven times, 
as well as amended in particular points. Thus Constitutions 
of all dates are now in force in different States, from that of 
Massachusetts, enacted in 1780, but largely amended since, to 
that of Arizona, enacted in 1912. 

The Constitutions of the revolutionary period were in a few 
instances enacted by the State legislature, acting as a body 
with plenary powers, but more usually by the people acting 
through a Convention, i.e. a body specially chosen by the 
voters at large for the purpose, and invested with full powers, 
not only of drafting, but of adopting the instrument of gov¬ 
ernment. 2 Since 1835, when Michigan framed her Constitu- 

1 However, though the Constitutions of the Canadian and Australian Do¬ 
minions and of United South Africa were enacted by British Statutes of 1867, 
1900 and 1909 respectively, all three had been drafted by the colonists. 

2 In Rhode Island and Connecticut the legislature continued the colonial 
Constitution. In South Carolina a body calling itself the “Provincial Con- 



CHAP. XXXVII 


STATE CONSTITUTIONS 


433 


tion, the invariable practice in the Northern States has been 
for the Convention, elected by the voters, to submit, in accord¬ 
ance with the precedents set by Massachusetts in 1780, and by 
Maine in 1820, the draft Constitution framed by it to the citi¬ 
zens of the State at large, who vote upon it Yes or No. They 
usually vote on it as a whole, and adopt or reject it en bloc, 
but sometimes provision is made for voting separately on some 
particular point or points. In the Southern States the practice 
has varied. In 1890, Mississippi enacted a new Constitution 
by a Convention alone; and in Kentucky (in 1891), after the 
draft Constitution which the Convention had prepared had 
been submitted to and accepted by a popular vote (as provided 
by the statute which summoned the convention), the Conven¬ 
tion met again and made some alterations on which, strange to 
say, the people have not been since consulted. 1 Alabama in 
1901 submitted her new Constitution to the people. But South 
Carolina in 1895 and Louisiana in 1898 allowed conventions to 
adopt Constitutions, and Virginia in 1902 followed their ex¬ 
ample, although the statute under which the Constitutional 
Convention was acting had directed that the revised Constitu¬ 
tion should be “ submitted to the qualified voters.” 

The people of a State retain for ever in their hands, alto¬ 
gether independent of the National government, the power of 
altering their Constitution. When a new Constitution is to be 
prepared, or the existing one amended, the initiative usually 
comes from the legislature, which (either by a simple majority, 
or by a two-thirds majority, or by a majority in two successive 
legislatures, as the Constitution may in each instance provide) 
submits the matter to the voters in one of two ways. It may 
either propose to the people certain specific amendments, 2 or it 

gress” claimed to be the “General Assembly,” or legislature of the colony, 
and as such enacted the Constitution. In the other revolting colonies, except 
Massachusetts, Conventions or Congresses enacted the Constitution, not sub¬ 
mitting it to the voters for ratification. In Massachusetts the Convention 
submitted its draft to the voters in 1780, and the voters adopted it, a previous 
draft tendered by the legislature in 1778 having been rejected. 

1 Proceedings were taken before the Court of Appeals of Kentucky to deter¬ 
mine the validity of these alterations, and the court by a majority upheld 
them, on the ground, it would seem, that the legislature and executive hac 
treated them as operative. Sed qitcere. 

2 In New Hampshire the legislature has no power to propose amendments, 
so the local authorities take the sense of the people every seven years as to 
the need for a revising Convention. In some States the legislature can do so 
only after stated intervals, e.g. of five years. 



434 


THE STATE GOVERNMENTS 


PART II 


may ask the people to decide by a direct popular vote on the 
propriety of calling a constitutional Convention to revise the 
whole existing Constitution. In the former case the amend¬ 
ments suggested by the legislature are directly voted on by the 
citizens; in the latter the legislature, so soon as the citizens 
have voted for the holding of a convention, provides for the 
election by the people of this convention. When elected, the 
Convention meets, sets to work, goes through the old Consti¬ 
tution, and prepares a new one, which is then usually presented 
to the people for ratification or rejection at the polls. Only 
in the little State of Delaware is the function of amending 
the Constitution still left to the legislature without the subse¬ 
quent ratification of a popular vote, subject, however, to the 
provision that changes must be passed by two successive legis¬ 
latures, by a two-thirds majority of the members elected to 
each House, and must have been put before the people at the 
election of members for the second. 1 Some States provide for 
the submission to the people at fixed intervals, of seven, ten, six¬ 
teen, or twenty years, of the propriety of calling a convention 
to revise the Constitution, and a few allow a prescribed percent¬ 
age of the voters to propose amendments by their own initiative. 
Be it observed, however, that whereas the Federal Constitution 
can be amended only by a vote of three-fourths of the States, 
a Constitution can in nearly every State be changed by a bare 
majority of the citizens voting at the polls. 2 Hence we may 
expect to find, and shall find, that these instruments are 
altered far more frequently and materially than the Federal 
Constitution has been. Between 1889 and 1908 only two 
States, Tennessee and Wyoming, abstained from altering their 
constitutions (Wyoming’s was enacted in 1889) and in those 


1 Constitution of 1897, which however also provides that the legislature 
may, by a like majority, submit to popular vote the question of summoning a 
convention to revise the constitution. 

2 Sometimes, however, an absolute majority of all the qualified voters is 
required. In Rhode Island (where the voting is in town and ward meetings) a 
three-fifths majority is needed, and in South Carolina the ratification of the 
next elected legislature by a two-thirds majority in each House is necessary. 
In Delaware the proposal to call a convention must be approved by a majority 
of all the voters, in Kentucky by at least one-fourth of the total number who 
voted at the last preceding general election. Delaware having during several 
years failed in the attempt to amend her Constitution (of 1831) by the legis¬ 
lature, fell back, in 1887, on the proposal to hold a constitutional convention, 
and at last gave herself a new Constitution in 1897. 



CHAP. XXXVII 


STATE CONSTITUTIONS 


435 


twenty years California altered hers forty-two times. Between 
1892 and 1908 she adopted 47 amendments. 

The tendency of late years has been to make the process of 
alteration quicker, for recent Constitutions generally provide 
that one legislature, not two successive legislatures, may pro¬ 
pose an amendment, which shall at once take effect if accepted 
by the people, 1 and also to make it easier, for some of the 
Western States now allow the people to start the process. 

A State Constitution is not only independent of the central 
national government (save in certain points already specified), 
it is also the fundamental organic law of the State itself. The 
State exists as a commonwealth by virtue of its Constitution, 
and all State authorities, legislative, executive, and judicial, 
are the creatures of, and subject to, the State Constitution. 2 
Just as the President and Congress are placed beneath the 
Federal Constitution, so the Governor and Houses of a State 
are subject to its Constitution, and any act of theirs done 
either in contravention of its provisions, or in excess of. the 
powers it confers on them, is absolutely void. All that has 
been said in preceding chapters regarding the functions of 
the courts of law where an Act of Congress is alleged to be 
inconsistent with the Federal Constitution, applies equally 
where a statute passed by a State legislature is alleged to trans¬ 
gress the Constitution of the State, and of course such valid- 


1 In the more recent Constitutions more than a bare majority of members 
of each of the two Houses of the Legislature must agree to propose an amend¬ 
ment, the amendment being in every case ultimately submitted to the people. 

2 Some details as to the provisions of State Constitutions may be found in 
Mr. F. J. Stimson’s American Statute Law , and in the same author’s Federal and 
State Constitutions of the United States (1908). The subject of State Constitu¬ 
tions has also been very well treated by Professor J. Q. Dealey in his book Our 
State Constitutions. The great authority was the collection of the State Con¬ 
stitutions, embracing (together with the colonial charters) all that have been 
duly enacted since 1776, in the two thick quarto volumes entitled Federal and 
State Constitutions, published under the authority of Congress by Ben. Perley 
Poore, Washington, 1878. In 1909 a new collection was under the authority 
of Congress published in seven volumes entitled The Federal and State Con¬ 
stitutions, Colonial Charters and other Organic Laws of the States, Territories, and 
Colonies now or heretofore Forming the United States of America, edited by Francis 
Newton Thorpe, Ph.D. LL.D. It is much to be wished that an annual, or a 
biennial or even quinquennial supplement to this new collection should be 
officially published, containing all the new constitutions and constitutional 
amendments. At present it is very difficult, even for residents in the United 
States, to ascertain exactly how the constitution of each State stands at a given 
moment; and I have not found it possible to keep abreast of the changes made 
since the aforesaid new collection went to press. 



436 


THE STATE GOVERNMENTS 


PART II 


ity may be contested in any court, whether a State court 
or a Federal court, because the question is an ordinary question 
of law, and is to be solved by determining whether or no a 
law of inferior authority is inconsistent with a law of supe¬ 
rior authority. Whenever in any legal proceeding before any 
tribunal, either party relies on a State statute, and the other 
party alleges that this statute is ultra vires of the State legis¬ 
lature, and therefore void, the tribunal must determine the 
question just as it would determine whether a bye-law made by 
a municipal council or a railway company was in excess of the 
law-making power which the municipality or the company had 
received from the higher authority which incorporated it and 
gave it such legislative power as it possesses. But although 
Federal courts are fully competent to entertain a question aris¬ 
ing on the construction of a State Constitution, their practice 
is to follow the precedent set by any decision of a court of the 
State in question, just as they would follow the decision of a 
French court in determining a point of French law. Each State 
must be assumed to know its own law better than a stranger 
can ; and the supreme court of a State is held to be the author¬ 
ized exponent of the mind of the people who enacted its Con¬ 
stitution. 

A State Constitution is really nothing but a law made di¬ 
rectly by the people voting at the polls upon a draft submitted 
to them. The people when they so vote act as a primary 
and constituent assembly, just as if they were all summoned 
to meet in one place like the folkmoots of our Teutonic fore¬ 
fathers. It is only their numbers that prevent them from so 
meeting in one place, and oblige the vote to be taken at a variety 
of polling places. Hence the enactment of a Constitution is 
an exercise of direct popular sovereignty to which we find few 
parallels in modern Europe, though it was familiar enough to 
the republics of antiquity, and has lasted till now in some of 
the cantons of Switzerland. 1 

The importance of this character of a State Constitution 
as a popularly-enacted law, overriding every minor State law, 
becomes all the greater when the contents of these Constitu¬ 
tions are examined. Europeans conceive of a constitution as 

1 Nowadays, however, the Landesgemeinden (which survive only in Uri, 
Unterwalden, Glarus, and Appenzell, having been recently discontinued in 
Schwyz and Zug) do not act as constituent or constitution-enacting bodies, 
though they still directly legislate, 



CHAP. XXXVII 


STATE CONSTITUTIONS 


437 


an instrument, usually a short instrument, which creates a 
frame of government, defines its departments and powers, and 
declares the “primordial rights” of the subject or citizen as 
against the rulers. An American State Constitution does this, 
but does more; and in most cases, infinitely more. It deals 
with a variety of topics which in Europe would be left to the 
ordinary action of the legislature, or of administrative author¬ 
ities ; and it pursues these topics into a minute detail hardly to 
be looked for in a fundamental instrument. Some of these 
details will be mentioned presently. Meantime I will sketch 
in outline the frame and contents of the more recent constitu¬ 
tions, reserving for next chapter remarks on the differences of 
type between those of the older and those of the newer States. 

A normal Constitution consists of five parts ; — 

I. The definition of the boundaries of the State. (This 
does not occur in the case of the older States.) 

II. The so-called Bill of Rights — an enumeration (whereof 
more anon) of the citizens’ primordial rights to liberty of per¬ 
son and security of property. This usually stands at the 
beginning of the Constitution, but occasionally at the end. 

III. The frame of government — i.e. the names, functions, 
and powers of the legislative bodies (including provisions 
anent the elective suffrage), the executive officers, and the courts 
of justice. 

IV. Miscellaneous provisions relating to administration and 
law, including articles treating of education, of the militia, of 
taxation and revenue, of the public debts, of local government, 
of State prisons and hospitals, of agriculture, of labour, of 
corporations and railroads, of impeachment, and of the method 
of amending the Constitution, besides other matters still less 
political in their character. The order in which these occur 
differs in different instruments, and there are some in which 
some of the above topics are not mentioned at all. The more 
recent Constitutions and those of the newer States are much 
fuller on these points. 

V. The Schedule, which contains provisions relating to the 
method of submitting the Constitution to the vote of the 
people, and arrangements for the transition from the previous 
Constitution to the new one which is to be enacted by that 
vote. Being of a temporary nature, the schedule is not strictly 
a part of the Constitution. 



438 


THE STATE GOVERNMENTS 


PART II 


The Bill of Rights is historically the most interesting part 
of these Constitutions, for it is the legitimate child and repre¬ 
sentative of Magna Charta, and of those other declarations 
and enactments, down to the Bill of Rights of the Act of 1 Wil¬ 
liam and Mary, session 2, by which the liberties of English¬ 
men have been secured. Most of the thirteen colonies 
when they asserted their independence and framed their Con¬ 
stitutions inserted a declaration of the fundamental rights of the 
people, and the example then set has been followed by the 
newer States, and, indeed, by the States generally in their most 
recent Constitutions. Considering that all danger from the 
exercise of despotic power upon the people of the States by the 
executive has long since vanished, their executive authorities 
being the creatures of popular vote and nowadays rather too 
weak than too strong, it may excite surprise that these assertions 
of the rights and immunities of the individual citizen as against 
the government should continue to be repeated in the instru¬ 
ments of to-day. A reason may be found in the remarkable con¬ 
stitutional conservatism of the Americans, and in their fondness 
for the enunciation of the general maxims of political freedom. 
But it is also argued that these declarations of principle have 
a practical value, as asserting the rights of individuals and of 
minorities against arbitrary conduct by a majority in the leg¬ 
islature, which might, in the absence of such provisions, be 
tempted at moments of excitement to suspend the ordinary 
law and arm the magistrates with excessive powers. They are 
therefore, it is held, still safeguards against tyranny; and they 
serve the purpose of solemnly reminding a State legislature 
and its officers of those fundamental principles which they 
ought never to overstep. 1 Although such provisions certainly 
do restrain a legislature in ways which the British Parliament 
would find inconvenient, few complaints of practical evils 
thence arising are heard. 

1 Mr. F. J. Stimson (Federal and State Constitutions, p. 68) well observes 
that whereas the extreme democrats of the Revolutionary age desired to limit 
as much as possible the powers of the Federal Government, deeming it dangerous 
to liberty, they were glad to entrust very wide powers to the State Legislatures 
which to them represented popular power. The propertied and educated 
classes on the other hand feared the State legislatures and sought to have re¬ 
strictions placed upon them. The precedent of the Declaration of Independence, 
whose influence was great, helped them to secure the insertion of such restric¬ 
tions in Bills of Rights. Of late years quite new reasons (to be presently re¬ 
ferred to) have arisen for limiting legislative powers. 



CHAP. XXXVII 


STATE CONSTITUTIONS 


439 


A general notion of these Bills of Rights may be gathered 
from that enacted for itself in 1907 by the new State of Okla¬ 
homa, printed in an Appendix to this volume. I may mention, 
in addition, a few curious provisions which occur in some of 
them. 

All provide for full freedom of religious opinion and wor¬ 
ship, and for the equality before the law of all religious de¬ 
nominations and their members; and many forbid the estab¬ 
lishment of any particular church or sect, and declare that no 
public money ought to be applied in aid of any religious body 
or sectarian institution. 1 But Delaware holds it to be “the 
duty of all men frequently to assemble for public worship”; 
and Vermont adds that “every sect or denomination of Chris¬ 
tians ought to observe the Sabbath or Lord’s Day.” And 
thirteen States declare that the provisions for freedom of con¬ 
science are not to be taken to excuse acts of licentiousness, or 
justify practices inconsistent with the peace and safety of 
the State, 2 Mississippi adding (1890) that they shall not 
be construed to exclude the Bible from use in schools, and 
Idaho, Montana, and Utah (States familiar with Mormonism), 
denouncing bigamy and polygamy as crimes to be made 
punishable. 

Louisiana (Constitution of 1898) declares that “all govern¬ 
ment, of right, originates with the people, is founded on their 
will alone, and is instituted solely for the good of the whole. 
Its only legitimate end is to secure justice to all, preserve 
peace, and promote the interest and happiness of the 
people.” 

A large majority of the States declare that “all men have a 
natural, inherent, and inalienable right to enjoy and defend 
life and liberty” ; and all of these, except the melancholy 
Missouri, add the “natural right to pursue happiness.” 

Most declare that all men have “a natural right to acquire, 
possess, and protect property,” while Arkansas and Kentucky 

1 Not till 1889, however, die*. New Hampshire strike out of her Constitution 
of 1792 a provision enabling the legislature to authorize towns to provide for 
the support of “public Protestant teachers of piety, religion, and morality. 

2 In Arkansas, Maryland, Mississippi, North Carolina, South Carolina, and 
Texas, a man is declared ineligible for office if he denies the existence of God; 
in Pennsylvania and Tennessee he is ineligible if he does not believe in God, and 
in the existence of future rewards and punishments. In Arkansas and Mary¬ 
land such a person is also incompetent as a witness or juror. 



440 


THE STATE GOVERNMENTS 


PART n 


are so penetrated with the importance of this right that they 
declare it to be “before and higher than any constitutional 
sanction.” 

Mississippi and Louisiana (Constitutions of 1868) provided 
that “the right of all citizens to travel upon public convey¬ 
ances shall not be infringed upon nor in any manner abridged.” 
Both States have now dropped this injunction. 1 

Kentucky (Constitution of 1891) lays down that “absolute 
arbitrary power over the lives, liberty, and property of freemen 
exists nowhere in a republic, not even in the largest majority. 
All men when they form a social compact are equal. All 
power is inherent in the people, and all free governments are 
founded on their authority, and instituted for their peace, 
safety, happiness, and security, and the protection of property. 
For the advancement of these ends they have at all times an 
inalienable and indefeasible right to alter, reform, or abolish 
their government in such manner as they may deem proper.” 2 

All in one form or another secure the freedom of writing 
and speaking opinions, and some add that the truth of a libel 
may be given in evidence. 3 

Nearly all secure the freedom of public meeting and petition. 
Considering that these are the last rights likely to be infringed 
by a State government, it is odd to find Florida in her Consti¬ 
tution of 1886 providing that “the people shall have the right 
to assemble together to consult for the common good, to instruct 
their representatives, and to petition the legislature for redress 
of grievances,” and Kentucky in 1891 equally concerned to 
secure this right. 

Many provide that no ex post facto law, nor law impairing 
the obligation of a contract, shall be passed by the State legis¬ 
lature ; and that private property shall not be taken by the 
State without just compensation. 

Many forbid the creation of any title of nobility. 

1 These provisions were inserted shortly after the Civil War in order to pro¬ 
tect the negroes. 

2 Until 1891, Kentucky added, “The right of property is before and higher 
than any constitutional sanction ; and the right of the owner of a slave to 
such slave and its increase is the same and as inviolable as the right of the 
owner of any property whatever,” although this doctrine had been annulled, 
in effect, by the thirteenth amendment to the Federal Constitution. 

3 A curious survival may be noted in the provisions enabling the jury to 
determine law as well as fact in libel cases ; e.g. Mississippi (1890) and Ken¬ 
tucky (1891) in criminal, Wyoming (1889) also in civil cases. 




CHAP. XXXVII 


STATE CONSTITUTIONS 


441 


Many declare that the right of citizens to bear arms shall 
never be denied, a provision which might be expected to prove 
inconvenient where it was desired to check the habit of carry¬ 
ing revolvers. Tennessee therefore (Constitution of 1870) pru¬ 
dently adds that “the legislature shall have power to regulate 
the wearing of arms, with a view to prevent crime.” So also 
Texas, where such a provision is certainly not superfluous. 
And eight others 1 allow the legislature to forbid the carrying of 
concealed weapons. 

Several forbid armed men to be brought into the State “for 
the suppression of domestic violence,” in order to prevent em¬ 
ployers from resorting to this means of protecting property 
in case of labour disputes accompanied by violence. 

Some declare that the estates of suicides shall descend in 
the ordinary course of law. 

Most provide that conviction for treason shall not work cor¬ 
ruption of blood nor forfeiture of estate. 

Eight forbid white and coloured children to be taught in the 
same public schools, while Wyoming provides that no distinc¬ 
tion shall be made in the public schools on account of sex, 
race, or colour. 

Many declare the right of trial by jury to be inviolate, even 
while permitting the parties to waive it. Several states empower 
a jury in civil cases to render a verdict by a three-fourths or two- 
thirds majority, and five states permit it to consist of less than 
twelve. 

Some forbid imprisonment for debt, except in case of fraud, 
and secure the acceptance of reasonable bail, except for the 
gravest charges. 2 

Several declare that “perpetuities and monopolies are con¬ 
trary to the genius of a free State, and ought not to be allowed.” 

Many forbid the granting of any hereditary honours, privi¬ 
leges, or emoluments. 

North Carolina declares that “as political rights and privi- 

1 North Carolina, Mississippi, Missouri, Louisiana, Colorado, Kentucky, 
Oklahoma, and Montana, States in which daily experience shows that the meas¬ 
ures taken have not hitherto proved successful. 

2 Mississippi (Const, of 1890) allows courts of justice to exclude, in some 
classes of prosecutions, persons not necessary for the conduct of the trial. 
Wyoming (1889) provides that no person detained as a witness be confined in 
any room where criminals are imprisoned, Oklahoma that if a verdict is ren¬ 
dered by less than the whole number of jurors, it shall be in writing and signed 
by each juror concurring therein, 



442 


THE STATE GOVERNMENTS 


PART II 


leges are not dependent upon or modified by property, no prop¬ 
erty qualification ought to affect the right to vote or hold 
office” ; and also, “secret political societies are dangerous to 
the liberties of a free people, and should not be tolerated.” 

Massachusetts sets forth, as befits a Puritan State, high moral 
views : “A frequent recurrence to the fundamental principles 
of the Constitution, and a constant adherence to those of piety, 
justice, moderation, temperance, industry, and frugality, are 
absolutely necessary to preserve the advantages of liberty and to 
maintain a free government. The people ought consequently to 
have a particular attention to all those principles in the choice 
of their officers and representatives, and they have a right to 
require of their law-givers and magistrates an exact and con¬ 
stant observance of them.” 

South Dakota and Wyoming provide that aliens shall have 
the same rights of property as citizens. Montana confers this 
benefit as respects mining property, while Washington prohibits 
the ownership of land by aliens, except for mining purposes. 
New York in her (now superseded) Const, of 1846 declared : 
“All lands within the State are declared to be allodial.” 

North Dakota (1889) enacts: “Every citizen shall be free 
to obtain employment wherever possible, and any person, cor¬ 
poration, or agent thereof, maliciously interfering or hindering 
in any way any citizen from obtaining, or enjoying employment 
already obtained, from any other corporation or person, shall be 
deemed guilty of a misdemeanor.” 

Maryland (Const, of 1867) declared that “a long continuance 
in the executive departments of power or trust is dangerous to 
liberty ; a rotation, therefore, in those departments is one of the 
best securities of permanent freedom.” She also pronounces 
all gifts for any religious purpose (except of a piece of land not 
exceeding five acres for a place of worship, parsonage, or bury- 
ing-ground) to be void unless sanctioned by the legislature. 

Montana and Idaho declare the use of lands for constructing 
reservoirs, water-courses, or ways for the purposes of mining 
or irrigation, to be a public use, subject to State regulation. 

Oklahoma provides that “the right of the State to engage 
in any occupation or business for public purposes shall not be 
denied or prohibited” save that its agricultural enterprises are 
to be only “for scientific, educational or charitable purposes.” 

These instances, a few out of many, may suffice to show how 



CHAP. XXXVII 


STATE CONSTITUTIONS 


443 


remote from the common idea of a Bill of Rights, are some of 
the enactments which find a place under that heading. The 
constitution makers seem to have inserted here such doctrines 
or legal reforms as seemed to them matters of high import or 
of wide application, especially when they could find no suitable 
place for them elsewhere in the instrument. 

Of the articles of each State Constitution which contain the 
frame of State government it will be more convenient to speak 
in the chapters which describe the mechanism and character 
of the governments and administrative systems of the several 
States. I pass on therefore to what have been classed as the 
Miscellaneous Provisions. These are of great interest as reveal¬ 
ing the spirit and tendencies of popular government in America, 
the economic and social condition of the country, the mischiefs 
that have arisen, the remedies applied to these mischiefs, the 
ideas and beliefs of the people in matters of legislation. 

Among such provisions we find a great deal of matter which 
is in no distinctive sense constitutional law, but general law, 
e.g. administrative law, the law of judicial procedure, the ordi¬ 
nary private law of family, inheritance, contract, and so forth; 
matter therefore which seems out of place in a constitution 
because fit to be dealt with in ordinary statutes. We find mi¬ 
nute provisions regarding the management and liabilities of 
banking companies, of railways, or of corporations generally ; 
regulations as to the salaries of officials, the quorum of courts 
sitting in banco, the length of time for appealing, the method 
of changing the venue, the publication of judicial reports; 
detailed arrangements for school boards and school taxation 
(with rules regarding the separation of white and black chil¬ 
dren in schools), for a department of agriculture, a canal board, 
or a labour bureau; we find a prohibition of lotteries, of polyg¬ 
amy, of bribery, of lobbying, of the granting of liquor licences, 
of usurious interest on money, an abolition of the distinction 
between sealed and unsealed instruments, a declaration of the 
extent of a mechanic’s lien for work done. We even find the 
method prescribed in which stationery and coals for the use of 
the legislature shall be contracted for, and provisions for fixing 
the rates which may be charged for the storage of corn in ware¬ 
houses. The framers of these more recent constitutions have 
in fact neither cared nor wished to draw a line of distinction 
between what is proper for a constitution and what ought to be 



444 


THE STATE GOVERNMENTS 


PART II 


left to be dealt with by the State legislature. And, in the case 
of three-fourths at least of the States, no such distinction now, 
in fact, exists. 

How is this confusion to be explained? Four reasons may 
be suggested. 

The Americans, like the English, have no love for scientific 
arrangement. Although the Constitutions have been drafted 
by lawyers, and sometimes by the best lawyers of each State, 
logical classification has not been sought after. 

The people found the enactment of a new Constitution a 
convenient opportunity for enunciating doctrines they valued 
and carrying through reforms they desired. It was a simpler 
and quicker method than waiting for legislative action, so, 
when there was a popular demand for the establishment of an 
institution, or for some legal change, this was shovelled into 
the new Constitution and enacted accordingly. 

The peoples of the States have come to distrust their respec¬ 
tive legislatures. Hence they desire not only to do a thing forth¬ 
with and in their own way rather than leave it to the chance 
of legislative action, but to narrow as far as they conveniently 
can (and sometimes farther) the sphere of the legislature. 

There is an unmistakable wish in the minds of the people to act 
directly rather than through their representatives in legislation. 
The same conscious relish for power which leads some democra¬ 
cies to make their representatives mere delegates, finds a fur¬ 
ther development in passing by the representatives, and setting 
the people itself to make and repeal laws. 

Those who have read the chapters describing the growth 
and development of the Federal Constitution, will naturally 
ask how far the remarks there made apply to the Constitutions 
of the several States. 

These instruments have less capacity for expansion, whether 
by interpretation or by usage, than the Constitution of. the 
United States : first, because they are more easily, and therefore 
more frequently, amended or recast; secondly, because they 
are far longer, and go into much more minute detail. The 
Federal Constitution is so brief and general that custom must 
fill up what it has left untouched, and judicial construction 
evolve the application of its terms to cases they do not expressly 
deal with. But the later State Constitutions are so full and 
precise that they need little in the way of expansive con- 



CHAP. XXXVII 


STATE CONSTITUTIONS 


445 


struction, and leave comparatively little room for the action of 
custom. 

The rules of interpretation are in the main the same as those 
applied to the Federal Constitution. One important difference 
must, however, be noted, springing from the different character 
of the two governments. The National Government is an 
artificial creation, with no powers except those conferred by the 
instrument which created it. A State Government is a natural 
growth, which prima facie possesses all the powers incident to any 
government whatever. Hence, if the question arises whether a 
State legislature can pass a law on a given subject, the presump¬ 
tion is that it can do so : and positive grounds must be adduced 
to prove that it cannot. It may be restrained by some inhibi¬ 
tion either in the Federal Constitution, or in the Constitution 
of its own State. But such inhibition must be affirmatively 
shown to have been imposed, or, to put the same point in other 
words, a State Constitution is held to be, not a document confer¬ 
ring defined and specified powers on the legislature, but one regu¬ 
lating and limiting that general authority which the representa¬ 
tives of the people enjoy ipso jure by their organization into a 
legislative body. 

“It has never been questioned that the American legislatures 
have the same unlimited power in regard to legislation which 
resides in the British Parliament, except where they are re¬ 
strained by written Constitutions. That must be conceded to 
be a fundamental principle in the political organization of the 
American States. We cannot well comprehend how, upon prin¬ 
ciple, it could be otherwise. The people must, of course, pos¬ 
sess all legislative power originally. They have committed this 
in the most general and unlimited manner to the several State 
legislatures, saving only such restrictions as are imposed by the 
Constitution of the United States or of the particular State in 
question.” 1 

“The people, in framing the Constitution, committed to the 
legislature the whole law-making powers of the State which they 
did not expressly or impliedly withhold. Plenary power in 
the legislature, for all purposes of civil government, is the rule. 
A prohibition to exercise a particular power is an exception.” 2 

1 Redfield, C.-J., in 27 Vermont Reports, p. 142, quoted by Cooley, Constit. 
Limit., p. 108. 

! Denio, C.-J., in 15 N. Y. Reports, p. 543, quoted ibid. p. 107. 




446 


THE STATE GOVERNMENTS 


PART II 


It must not, however, be supposed from these dicta that even 
if the States were independent commonwealths, the Federal 
Government having disappeared, their legislatures would enjoy 
anything approaching the omnipotence of the British Parlia¬ 
ment, “whose power and jurisdiction is,” says Sir Edward 
Coke, “so transcendent and absolute that it cannot be confined, 
either for persons or causes, within any bounds.” “All mis¬ 
chiefs and grievances,” adds Blackstone, “operations and rem¬ 
edies that transcend the ordinary course of the laws are within 
the reach of this extraordinary tribunal.” Parliament being 
absolutely sovereign, can command, or extinguish and swallow 
up the executive and the judiciary, appropriating to itself their 
functions. But in America, a legislature is a legislature and 
nothing more. The same instrument which creates it creates 
also the executive governor and the judges. They hold by 
a title as good as its own. If the legislature should pass a law 
depriving the governor of an executive function conferred by 
the Constitution, that law would be void. If the legislature 
attempted to interfere with the jurisdiction of the courts, their 
action would be even more palpably illegal and ineffectual. 1 

The executive and legislative departments of a State govern¬ 
ment have of course the right and duty of acting in the first 
instance on their view of the meaning of the Constitution. 
But the ultimate expounder of that meaning is the judiciary; 
and when the courts of a State have solemnly declared the true 
construction of any provision of the Constitution, all persons 
are bound to regulate their conduct accordingly. As was ob¬ 
served in considering the functions of the Federal judiciary 
(Chapter XXIII.), this authority of the American courts is not 
in the nature of a political or discretionary power vested in 
them; it is a necessary consequence of the existence of a fun¬ 
damental law superior to any statute which the legislature may 
enact, or to any right which a governor may conceive himself 
to possess. 2 To quote the words of an American decision : — 

1 It has, for instance, been held that a State legislature cannot empower elec¬ 
tion boards to decide whether a person has by duelling forfeited his right to 
vote or hold office, this inquiry being judicial and proper only for the regular 
tribunals of the State. — Cooley, Constit. Limit., p. 112. Acts passed by legis¬ 
latures affecting some judicial decision already given, have repeatedly been 
held void by the Courts. 

2 In Switzerland, however, the cantonal courts have not, except perhaps in 
Uri, the right to declare invalid a law made by a cantonal legislature, the legis¬ 
lature being apparently deemed the judge of its own powers. A cantonal la\* 



CHAP. XXXVII 


STATE CONSTITUTIONS 


447 


“In exercising this high authority the judges claim no judi¬ 
cial supremacy; they are only the administrators of the public 
will. If an Act of the legislature is held void, it is not because 
the judges have any control over the legislative power, but be¬ 
cause the Act is forbidden by the Constitution, and because the 
will of the people, which is therein declared, is paramount to 
that of their representatives expressed in any law.” 

It is a well-established rule that the judges will always lean 
in favour of the validity of a legislative Act; that if there be 
a reasonable doubt as to the constitutionality of a statute they 
will solve that doubt in favour of the statute; that where the 
legislature has been left a discretion they will assume the dis¬ 
cretion to have been wisely exercised ; that where the construc¬ 
tion of a statute is doubtful, they will adopt such construction 
as will harmonize with the Constitution, and enable it to take 
effect. So it has been well observed that a man might with 
perfect consistency argue as a member of a legislature against 
a bill on the ground that it is unconstitutional, and after hav¬ 
ing been appointed a judge, might in his judicial capacity sus¬ 
tain its constitutionality. Judges must not inquire into the 
motives of the legislature, nor refuse to apply an Act because 
they may suspect that it was obtained by fraud or corruption, 
still less because they hold it to be opposed to justice and 
sound policy. “A court cannot declare a statute unconstitu¬ 
tional and void solely on the ground of unjust and oppressive 
provisions, or because it is supposed to violate the natural, 
social, or political rights of the citizen, unless it can be shown 
that such injustice is prohibited, or such rights guaranteed or 
protected, by the Constitution. 1 . . . But when a statute is 


may, however, be quashed, in some cases, by the Federal Council, or pro¬ 
nounced invalid by the Federal Court. See an interesting discussion of the 
question in Dubs, Das oeffentliche Recht der Schweizerischen Eidgenossenschaft, 

Part I. p. 113. # -ill 

1 This was not always admitted ; just as in England it was at one time held 
that natural justice and equity were above Acts of Parliament. So in the case 
of Gardner v. The Village of Newhurg (Johnson’s Chancery Reports, N. Y. 162), 
the New York legislature had authorized the village to supply itself with water 
from a stream, but had made no provision for indemnifying the owners of 
lands through which the stream flowed for the injury they must suffer from 
the diversion of the water. The Constitution of New York at that time con¬ 
tained no provision prohibiting the taking of private property for public use 
without compensation ; notwithstanding this, Chancellor Kent restrained the 
village from proceeding upon the broad general principle which he found in 
Magna Charta, in a statutory Bill of Rights, which of course could not control 



448 


THE STATE GOVERNMENTS 


PART II 


adjudged to be unconstitutional, it is as if it had never been. 
Rights cannot be built up under it; contracts which depend 
upon it for their consideration are void; it constitutes a pro¬ 
tection to no one who has acted under it; and no one can be 
punished for having refused obedience to it before the decision 
was made. And what is true of an Act void in toto, is true also 
as to any part of an Act which is found to be unconstitutional, 
and which consequently is to be regarded as having never at 
any time been possessed of legal force.” 1 

It may be thought, and the impression will be confirmed 
when we consider as well the minuteness of the State Con¬ 
stitutions as the profusion of State legislation and the incon¬ 
siderate haste with which it is passed, that as the risk of a 
conflict between the Constitution and statutes is great, so the 
inconveniences of a system under which the citizens cannot tell 
whether their obedience is or is not due to a statute must be 
serious. How is a man to know whether he has really acquired 
a right under a statute? how is he to learn whether to con¬ 
form his conduct to it or not? How is an investor to judge 
if he may safely lend money which a statute has empowered 
a community to borrow, when the statute may be itself subse¬ 
quently overthrown ? 

To meet these difficulties some State Constitutions 2 provide 
that the judges of the supreme court of the State may be called 

the legislature, and in Grotius Puffendorf and Bynkershoek. (I owe this 
reference to the kindness of Mr. Theodore Bacon.) 

As the doctrine stated in the text has been doubted by some critics, I may 
refer for further confirmation of it to Dash v. Van Kleech, 7 Johns. 477 
(words of Chancellor Kent), and People v. Gillson, 109 N. Y. 398. See further 
on this subject the late Professor Thayer’s Cases in Constitutional Law , p. 48. 

1 Cooley, Constit. Limit., pp. 200, 227. 

2 Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, Florida, 
and South Dakota. In Vermont a similar power is given by statute. In South 
Dakota the governor may require it “upon important questions of law involv¬ 
ing the exercise of his executive powers and upon solemn occasions.” In 
Florida it is only the governor to whom the power has been given, and whereas 
under the Constitution of 1868 he could obtain the opinion of the justices 
“upon any point of law,” he can by the Constitution of 1886 require it only 
“upon any question affecting his executive powers and duties.” A similar 
provision was inserted in the Constitution of Missouri of 1865, but omitted in 
the revised (and now operative) Constitution of 1875, apparently because the 
judges had so often refused to give their advice when asked for it by a house 
of the legislature, that there seemed little use in retaining the enactment. In 
the other States the judges have apparently always consented to answer, save 
on one or two occasions in Massachusetts. See on the whole subject an inter¬ 
esting pamphlet by the late Professor J. B. Thayer, of the Harvard Law School, 



CHAP. XXXVII 


STATE CONSTITUTIONS 


449 


upon by the governor or either house of the legislature to deliver 
their opinions upon questions of law, without waiting for these 
questions to arise and be determined in an ordinary lawsuit . 1 
This expedient seems a good one, for it procures a judicial 
and non-partisan interpretation, and procures it at once before 
rights or interests have been created. But it is open to the 
objection that the opinions so pronounced are given before cases 
have arisen which show how in fact a statute is working, and 
what points it may raise; and that the judges have not, as in 
contested lawsuits, the assistance of counsel arguing for their 
respective clients. And this is perhaps the reason why in most 
of the States where the provision exists, the judges have declared 
that they act under it in a purely advisory capacity, and that their 
deliverances are mere expressions of opinion, not binding upon 
them should the point afterwards arise in a suit involving the 
rights of parties . 2 

The highest court of a State may depart from a view it has 
previously laid down, even in a legal proceeding, regarding the 
construction of the Constitution, that is to say, it has a legal 
right to do so if convinced that the former view was wrong. 
But it is reluctant to do so, because such a course unsettles the 
law and impairs the respect felt for the bench. And there is 
less occasion for it to do so than in the parallel case of the su¬ 
preme Federal court, because as the process of amending a 
State Constitution is simpler and speedier than that of alter¬ 
ing the Federal Constitution, a remedy can be more easily 


1 The judges of the supreme court of Massachusetts suggest in their very 
learned and instructive opinion, delivered to the legislature, December 31, 1878, 
that this provision, which appears first in the Massachusetts Constitution of 
1780, and was doubtless borrowed thence by the other States, “evidently had 
in view the usage of the English Constitution, by which the King as well as 
the House of Lords, whether acting in their judicial or in their legislative ca¬ 
pacity, had the right to demand the opinion of the twelve judges of England.” 
This is still sometimes done by the House of Lords acting in their judicial 
capacity; but the opinions of the judges so given are not necessarily followed 
by that House, and though always reported are not deemed to be binding pro¬ 
nouncements of law similar to the decisions of a court. 

2 Mr. Thayer shows, by an examination of the reported instances, that in 
Massachusetts, New Hampshire, and Rhode Island, as also in Missouri from 
1865 to 1875, the courts held that their opinions rendered under these provisions 
of the State Constitutions were not to be deemed judicial determinations, 
equal in authority to decisions given in actual litigation, but were rather prima 
facie impressions, which the judges ought not to hold themselves bound by, 
when subsequently required to determine the same point in an action or other 
legal proceeding. It is otherwise in Maine and Colorado, 

2 G 



450 


THE STATE GOVERNMENTS 


PART II 


applied to any mistake which the State judiciary has com¬ 
mitted. This unwillingness to unsettle the law goes so far 
that State courts have sometimes refused to disturb a practice 
long acquiesced in by the legislature, which they have never¬ 
theless declared they would have pronounced unconstitutional 
had it come before them while still new. 



CHAPTER XXXVIII 


THE DEVELOPMENT OF STATE CONSTITUTIONS 

It was observed in last chapter that the State Constitutions 
furnish invaluable materials for history. Their interest is all 
the greater, because the succession of Constitutions and amend¬ 
ments to Constitutions from 1776 till to-day enables the annals 
of legislation and political sentiment to be read in these docu¬ 
ments more easily and succinctly than in any similar series of 
laws in any other country. They are a mine of instruction 
for the natural history of democratic communities. Their 
fulness and minuteness make them, so to speak, more pictorial 
than the Federal Constitution. They tell us more about the 
actual methods and conduct of the government than it does. 
If we had similar materials concerning the history of as many 
Greek republics during the ages of Themistocles and Pericles, 
we could rewrite the history of Greece. Some things, how¬ 
ever, even these elaborately minute documents do not tell us. 
No one could gather from them what were the modes of doing 
business in the State legislatures, and how great a part the 
system of committees plays there. No one could learn what 
manner of men constitute those bodies and determine their 
character. No one would know that the whole machinery is 
worked by a restlessly active party organization. Nevertheless 
they are so instructive as records of past movements, and as an 
index to the present tendencies of American democracy, that 
I heartily regret that the space at my disposal permits me to 
make only a sparing use of the materials which I gathered 
during many months spent in studying the one hundred and 
thirteen Constitutions enacted between 1776 and 1887, to which 
many more have since been added. 1 

1 1 venture again to commend the study of these constitutions to the philo¬ 
sophic inquirer into what may be called the science of comparative politics. 
Both among the pre-Revolutionary charters and the State constitutions he will 

451 


452 


THE STATE GOVERNMENTS 


part i: 


Three periods may be distinguished in the development of 
State Governments as set forth in the Constitutions, each period 
marked by an increase in the length and minuteness of those 
instruments. 

The first period covers about thirty years from 1776 down¬ 
wards, and includes the earlier Constitutions of the original 
thirteen States, as well as of Kentucky, Vermont, Tennessee, 
and Ohio. 

Most of these Constitutions were framed under the impres¬ 
sions of the Revolutionary War. They manifest a dread of 
executive power and of military power, together with a dis¬ 
position to leave everything to the legislature, as being the 
authority directly springing from the people. The election of 
a State governor is in most States vested in the legislature. 
He is nominally assisted, but in reality checked, by a council 
not of his own choosing. He has not (except in Massachu¬ 
setts) a veto on the Acts of the legislature. 1 He has not, like 
the royal governors of colonial days, the right of adjourning 
or dissolving it. The idea of giving power to the people di¬ 
rectly has scarcely appeared, because the legislature is con¬ 
ceived as the natural and necessary organ of popular govern¬ 
ment, much as the House of Commons is in England. And 
hence many of these early Constitutions consist of little beyond 
an elaborate Bill of Rights and a comparatively simple outline 
of a frame of government, establishing a representative legis¬ 
lature, 2 with a few executive officers and courts of justice care¬ 
fully separated therefrom. 

The second period covers the first half of the nineteenth cen¬ 
tury down to the time when the intensity of the party struggles 
over slavery (1850-60) interrupted to some extent the natural 
processes of State development. It is a period of the democ- 

find matter full of instruction. Among the former I may especially refer to the 
Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental 
Constitutions of Carolina of 1669. These last were framed by John Locke, 
and revised by the first Lord Shaftesbury. They were found unsuitable, were 
only partially put in force, and were abrogated by the proprietors in 1693, but 
they are scarcely less interesting to the student of history on that account. 

1 In New York a veto on Acts of the legislature was by the first Constitution 
vested in the Governor and judges of the highest State court, acting together. 

2 The wide powers of these early legislatures are witnessed to by the fear 
which prudent statesmen entertained of their action. Madison said, in the 
Constitutional Convention of 1787, “Experience proves a tendency in our gov¬ 
ernments to throw all power into the legislative vortex. The executives of 
the States are little more than ciphers; the legislatures are omnipotent.’’ 



Cha?. Xxxvm DEVELOPMENT OF CONSTITUTIONS 453 


ratization of all institutions, a democratization due not only to 
causes native to American soil, such as the rise in the West 
of new agricultural communities where all the settlers were 
practically equal, the supremacy in politics of the generation 
who had, as boys during the Revolutionary War, been per¬ 
meated by the phrases of 1776, but also to the influence of 
French republican ideas, an influence which began to decline 
after 1805 and ended with 1851, since which time French 
examples and ideas have counted for little or nothing. Such 
provisions for the maintenance of religious institutions by the 
State as had continued to exist are now swept away. The 
principle becomes established (in the North and West) that 
constitutions must be directly enacted by popular vote. The 
choice of a governor is taken from the legislature to be given 
to the people. Property qualifications are abolished, 1 and a 
suffrage practically universal, except that it often excludes 
free persons of colour, is introduced. Even the judges are 
not spared. Many Constitutions shorten their term, and 
direct them to be chosen by popular vote. The State has 
emerged from the English conception of a community acting 
through a ruling legislature, for the legislature begins to be 
regarded as being only a body of agents exercising delegated 
and restricted powers, and obliged to recur to the sovereign 
people (by asking for a constitutional amendment) when it 
seeks to extend these powers in any particular direction. The 
increasing length of the constitutions during this half century 
shows how the range of the popular vote has extended, for these 
documents now contain a mass of ordinary law on matters which 
in the early days would have been left to the legislatures. 

In the third period, which begins from about the time of the 
Civil War, a slight reaction may be discerned, not against 
popular sovereignty, which is stronger than ever, but in the 
tendency to strengthen the executive and judicial departments 
as against the legislative. The governor had begun to receive in 
the second period, and has now in every State but one, a veto on 
the acts of the legislature. His tenure of office has been gener¬ 
ally lengthened; the restrictions on his re-eligibility generally 
removed. In many States the judges have been granted larger 
salaries, and their terms of office lengthened. Some Constitu- 

l Though Massachusetts forgot till 1892 to abolish the property qualification 
for her Governorship. 




454 


THE STATE GOVERNMENTS 


PART II 


tions have even transferred judicial appointments from the vote 
of the people to the executive. But the most notable change of 
all has been the narrowing of the competence of the legislature, 
and the fettering its action by complicated restrictions. It 
may seem that to take powers away from the legislature is to 
give them to the people, and therefore another step towards 
pure democracy. But in America this is not so, because a 
legislature is apt to yield to any popular clamour, however 
transient, while direct legislation by the people involves delay. 
Such provisions may therefore prove to be conservative in their 
results, if not in their intention. 

This process of development, which first exalted and then 
depressed the legislature, which extended the direct interference 
of the people, which changed the Constitution itself from a 
short into a long, a simple into a highly complex document, has 
of course not yet ended. Forces are already at work which 
may make the constitutions of forty years hence different from 
those of to-day. To conjecture the nature of these forces we 
must examine a little further the existing constitutions of the 
States, especially the later among them ; and more particularly 
that remarkable group enacted in 1889 by the six common¬ 
wealths which were admitted to the Union in 1889 and 1890, as 
well as the constitution which Oklahoma gave herself in 1907. 
We must also distinguish between different types of constitu¬ 
tion corresponding to the different parts of the Union in which 
the States that have framed them are situate. 

Three types were formerly distinguishable, the old colonial 
type, best seen in New England and the older middle States, 
the Southern or Slave State type (in which the influence of 
the first Constitution of Virginia was noticeable), and the new 
or Western type. At present these distinctions are less marked. 
All the Southern States have given themselves new consti¬ 
tutions since the war; and the differences between these and 
the new constitutions of the North-Western and Pacific States 
are not salient. This is because the economic and social changes 
produced by the War of Secession and abolition of slavery 
broke to pieces the old social conditions, and made these South¬ 
ern States virtually new communities like those of the West. 
There is still, however, a strong contrast between the New Eng¬ 
land States, to which for this purpose we may add New Jersey, 
whose present constitutions all date from the period between 



chap, xxxviii DEVELOPMENT OF CONSTITUTIONS 455 


1780 and 1844, and the Southern and Western States, nearly all 
of whose constitutions are subsequent to that year. In these 
older States the power of the executive is generally greater. The 
judges are frequently named by the governor, and not elected 
by the people. The electoral districts are not always equal. 
The constitutions are not so minute, and therefore the need of 
recurring to the people to change them arises less frequently. 

Taking the newer, and especially the Western and Southern 
Constitutions, and remembering that each is the work of an 
absolutely independent body, which (subject to the Federal 
Constitution) can organize its government and shape its law 
in any way it pleases, so as to suit its peculiar conditions and 
reflect the character of its population, one is surprised to find 
how similar these newer instruments are. There is endless 
variety in details, but a singular agreement in essentials. The 
influences at work, the tendencies which the constitutions 
framed since 1865 reveal, are evidently the same over the 
whole Union. What are the chief of those tendencies? One 
is for the constitutions to grow longer. This is an absolutely 
universal rule. Virginia, for instance, put her first constitu¬ 
tion, that of 1776, into four closely printed quarto pages, that 
is, into about three thousand two hundred words. In 1830, 
she needed seven pages ; in 1870, twenty-two pages, or seventeen 
thousand words; her latest has (1902) thirty-five thousand words. 
Texas has doubled the length of her constitution from sixteen 
quarto pages in 1845 to thirty-four in 1876. Pennsylvania was 
content in 1776 with a document of eight pages, which for 
those times was a long one; she now requires twenty-three. 
The constitution of Illinois filled ten pages in 1818; in 1870 it 
had swollen to twenty-five. These are fair examples, but the 
extremes are marked by the constitution of New Hampshire 
of 1776, which was of about six hundred words (not reckoning 
the preamble), and the constitutions of Missouri of 1875 and 
of South Dakota of 1889, which have each more than twenty- 
six thousand words. Even these were surpassed by Oklahoma, 
whose constitution of 1907 exceeded thirty-three thousand 
words, and by Louisiana, whose constitution of 1898 has forty- 
five thousand. The new constitutions are longer, not only 
because new topics are taken up and dealt with, but because 
the old topics are handled in far greater detail. Such mat¬ 
ters as education, ordinary private law, railroads, State and 



456 


THE STATE GOVERNMENTS 


PART II 


municipal indebtedness, were either untouched or lightly 
touched in the earlier instruments. The provisions regarding 
the judiciary and the legislature, particularly those restricting 
the power of the latter, have grown far more minute of late 
years, as abuses of power became more frequent, and the re¬ 
spect for legislative authority less. As the powers of a State 
legislature are prima facie unlimited, these bodies can be re¬ 
strained only by enumerating the matters withdrawn from 
their competence, and the list grows always ampler. The 
time might almost seem to have come for prescribing that, 
like Congress, they should be entitled to legislate on certain 
enumerated subjects only, and be always required to establish 
affirmatively their competence to deal with any given topic. 

I have already referred to the progress which the newer con¬ 
stitutions show towards more democratic arrangements. The 
suffrage is now in almost every State enjoyed by all adult 
males, and in ten by adult females also. Citizenship is quickly 
and easily accorded to immigrants. And, most significant of 
all, the superior judges, who were formerly named by the gov¬ 
ernor, or chosen by the legislature, and who held office during 
good behaviour, are now in most States elected by the people 
for fixed terms of years. I do not ignore the strongly-marked 
democratic character of even the first set of constitutions, formed 
at and just after the Revolution ; but that character manifested 
itself chiefly in negative provisions, i.e. in forbidding exercises 
of power by the executive, in securing full civil equality and the 
primordial rights of the citizen. The new democratic spirit is 
positive as well as negative. It refers everything to the direct 
arbitrament of the people. It calls their will into constant 
activity, sometimes by the enactment of laws on various subjects 
in the Constitution, sometimes by prescribing to the legislature 
the purposes which legislation is to aim at. Even the tendency 
to support the executive against the legislature is evidence not 
so much of respect for authority as of the confidence of the 
people that the executive will be the servant of popular opin¬ 
ion, prepared at its bidding to restrain that other servant — 
the legislature — who is less trusted, because harder to fix with 
responsibility for misdoing. On the whole, therefore, there 
can be no doubt that the democratic spirit is now more ener¬ 
getic and pervasive than it was in the first generation. It is 
a different kind of spirit. It is more practical, more disposed 



chap, xxxviii DEVELOPMENT OF CONSTITUTIONS 457 


to extend the sphere of governmental interference, less con¬ 
tent to rely on general principles. One discovers in the word¬ 
ing of the most recent constitutions a decline of that touching 
faith in the efficacy of broad declarations of abstract human 
rights which marked the disciples of Jefferson. But if we 
compare the present with the second or Jacksonian age, it may 
be said that there has been in progress for some while past 
a certain reaction, not agaipst democracy but towards, a better 
scheme of democracy, a reaction as yet more discernible in 
feeling than in tangible results, fainter than the levelling move¬ 
ment of 1820-50, and not likely to restore the state of things 
that existed before that movement, yet noticeable as show¬ 
ing that the people do learn by experience, and are not indis¬ 
posed to reverse their action and get clear of the results of 
past mistakes. The common saying that on the road to de¬ 
mocracy there are vestigia nulla retrorsum is not universally 
true in America. 

That there are strong conservative tendencies in the United 
States is a doctrine whose truth will be illustrated later on. 
Meanwhile it is worth while to ask how far the history of State 
censtitutions confirms the current notion that democracies 
are fond of change. The answer is instructive, because it 
shows how flimsy are the generalizations which men often 
indulge in when discussing forms of government, as if all com¬ 
munities with similar forms of government behaved in the 
same way. All the States of the Union are democracies, and 
democracies of nearly the same type. Yet while some change 
their constitutions frequently, others change theirs scarcely at 
all. Let me recall the reader’s mind to the distinction already 
drawn between the older or New England type and the newer 
type, which we find in the Southern as well as the Western 
States. It is among the latter that changes are frequent. 
Louisiana, for instance, whose State life began in 1812, has 
had seven complete new constitutions, without counting the so- 
called Secession Constitution of 1861. Virginia, Georgia, and 
South Carolina (both original States) have had six each. Kan¬ 
sas, which began in 1855, has had four. Among the Northern 
States, Pennsylvania (an original State) has had four; Illinois, 
dating from 1818, three; New York, five; Delaware, four; 
whereas Connecticut and Rhode Island (both original States) 
and Maine (dating from 1820) have had only one each, Vermont 



458 


THE STATE GOVERNMENTS 


PART II 


and New Hampshire three each. Massachusetts still lives under 
her Constitution of 1780, which has indeed been amended at 
various dates, yet not to such an extent as to efface its original 
features. Of the causes of these differences I will now touch 
on two only. One is the attachment which in an old and his¬ 
toric, a civilized and well-educated community, binds the people 
to their accustomed usages and forms of government. It is 
the newer States, without a past to revere, with a population 
undisciplined or fluctuating, that are prone to change. In 
well-settled commonwealths the longer a constitution has stood 
untouched, the longer it is likely to stand, because the force 
of habit is on its side, because an intelligent people learns to 
value the stability of its institutions, and to love that which 
it is proud of having long ago created. 

The other cause is the difference between the swiftness with 
which economic and social changes move in different parts of 
the country. They are the most constant sources of political 
change, and find their natural expression in alterations of the 
Constitution. Such changes have been least swift and least 
sudden in the New England and Middle States, though in some 
of the latter the growth of great cities, such as New York and 
Philadelphia, has induced them, and induced therewith a ten¬ 
dency to amend the constitutions so as to meet new conditions 
and check new evils. They have been most marked in regions 
where population and wealth have grown with unexampled 
speed, and in those where the extinction of slavery has changed 
the industrial basis of society. Here lies the explanation of the 
otherwise singular fact that several of the original States, such 
as Virginia and Georgia, have run through many constitutions. 
These whilom Slave States have not only changed greatly but 
changed suddenly : society, as well as political life, was dislocated 
by the Civil War, and has had to make more than one effort to 
set itself right. 

The total number of distinct constitutions adopted in 1776 
or enacted in the several States from that year down till 1909 
— the States being in the former year 13 and in the latter 46 
in number — is 127 ; and to these constitutions a vast number of 
amendments have been at different times adopted. 1 The period 

1 Owing to the absence of any general official record, it is hard to ascertain 
the exact number, but in the ten years between 1894 and 1904 it would appear 
that 381 were voted on, of which 217 were adopted and 164 rejected (Dealey, 



chap, xxxviii DEVELOPMENT OF CONSTITUTIONS 459 


since 1860 shows a somewhat greater frequency of change than 
the eighty-four years preceding ; but that may be accounted for 
by the effects of the war on the Southern States. The average 
duration of a constitution has been estimated at thirty years, 
and there are now seven which have lasted more than sixty 
years. Both whole constitutions and particular amendments are 
frequently rejected by the people when submitted to them at the 
polls. This befel six draft constitutions and more than twenty- 
eight amendments between 1877 and 1887. 

Putting all these facts together, and bearing in mind to how 
large an extent the constitutions now, whether wisely or fool¬ 
ishly, embody ordinary private and administrative law and 
therefore invite amendment, the American democracy seems 
less inclined to changefulness and inconstancy than either 
abstract considerations or the descriptions of previous writers, 
such as Tocqueville, would have led us to expect. The respect 
for these fundamental instruments would no doubt be greater 
if the changes in them were even fewer, and the changes would be 
fewer if the respect were greater ; but I see little reason to think 
that the evil is increasing. 

A few more observations on what the Constitutions disclose 
are needed to complete this brief sketch of the most instructive 
sources for the history of popular government which the nine¬ 
teenth century produced — documents whose clauses, while 
they attempt to solve the latest problems of democratic common¬ 
wealths, often recall the earliest efforts of our English fore¬ 
fathers to restrain the excesses of mediaeval tyranny. 

The Constitutions witness to a singular distrust by the people 
of its own agents and officers, not only of the legislatures but also 
of local authorities, as well rural as urban, whose powers of 
borrowing or undertaking public works are strictly limited. 
Even the judges are in some States restrained in their authority 
to commit for contempt of court, and three recent constitutions 
contain severe provisions against abuse of his veto and appoint¬ 
ing power by the governor, and against bribery offered to or by 
him. 1 

They witness also to a jealousy of the Federal government. 


Our State Constitutions, p. 13). Between 1892 and 1909 California adopted 47 
amendments, Georgia and Minnesota 11 each, Florida, Oregon, and North 
Dakota 10 each, and some States none at all. 

1 Constitutions of North Dakota, South Dakota, and Wyoming, all of 1889. 



460 


THE STATE GOVERNMENTS 


fART Ii 


By most constitutions a Federal official is made incapable, not 
only of State office, but of being a member of a State legislature. 
These prohibitions are almost the only references to the National 
government to be found in the State constitutions, which so far 
as their terms go might belong to independent communities. 
They usually talk of corporations belonging to other States as 
“foreign,” and sometimes try to impose special burdens on them. 

They show a wholesome anxiety to protect and safeguard 
private property in every way. The people’s consciousness of 
sovereignty has not used the opportunity which the enact¬ 
ment of a constitution gives to override private rights : there 
is rather a desire to secure such rights from any encroach¬ 
ment by the legislature : witness the frequent provisions against 
the taking of property without due compensation, and against 
the passing of private or personal statutes which could unfairly 
affect individuals. The only exceptions to this rule are to be 
found in the case of anything approaching a monopoly, and in the 
case of wealthy corporations. But the “ monopolist ” is regarded 
as the enemy of the ordinary citizen, whom he oppresses; and 
the corporation — it is usually corporations that are monopo¬ 
lists — is deemed not a private person at all, but a sort of irre¬ 
sponsible tyrant whose resources enable him to overreach the 
law. Corporations are singled out for special taxation and are 
evidently the objects of growing suspicion and hostility, for 
the newer constitutions multiply provisions for holding them in 
check'and keeping them under close supervision. Michigan and 
Mississippi limit their duration. Oklahoma denies them the 
rights of ordinary citizens before the Courts ; some States forbid 
trustees to invest in corporate securities. Labour laws are 
enacted to apply to them only. A remarkable instance of this 
dread of monopolies is to be found in the Constitution of Illinois 
of 1870, with its provisions anent grain elevators, warehouses, 
and railroads. 1 The newer constitutions of other Western 
States, such as California and Texas, are not less instructive 
in this respect. Nor is it surprising that efforts should be made 
in some of the more recent instruments to strike at the combi¬ 
nations called “trusts.” 

The extension of the sphere of State interference, with the 
corresponding departure from the doctrine of laissez faire, is a 

1 See the remarkable group of cases beginning with Munn v. Illinois (com¬ 
monly called the Granger Cases) in 94 U. S. Reports, p. 113. 



chap, xxxviii DEVELOPMENT OF CONSTITUTIONS 


461 


question so large and so interesting as to require a chapter to 
itself in my second volume. Here it may suffice to remark, 
that some departments of governmental action, which on the 
continent of Europe have long been handled by the State, are 
in America still left to private enterprise. For instance, the 
States neither own nor manage railways, or telegraphs, or 
mines, or forests, and they sell their public lands instead of 
working them. There is, nevertheless, visible in recent con¬ 
stitutions a strong tendency to extend the scope of public 
administrative activity. Most of the newer instruments estab¬ 
lish not only railroad commissions, intended to control the 
roads in the interest of the public, but also bureaux of agricul¬ 
ture, labour offices, mining commissioners, land registration 
offices, dairy commissioners, insurance commissioners, and agri¬ 
cultural or mining colleges. And a reference to the statutes 
passed within the last few years in the Western States will show 
that more is being done in this direction by the legislatures, as 
exponents of popular sentiment, than could be gathered from the 
older among the Western constitutions. 

A spirit of humanity and tenderness for suffering, very charac¬ 
teristic of the American people, appears in the directions which 
many constitutions contain for the establishment of charitable 
and reformatory institutions, and for legislation to protect 
children. 1 Sometimes the legislature is enjoined to provide 
that the prisons are made comfortable; or directions are given 
that homes or farms be provided as asylums for the aged and 
unfortunate. 2 On the other hand, this tenderness is qualified 
by the judicious severity which in most States debars persons 
convicted of crime from the electoral franchise. Lotteries are 
stringently prohibited by some of the recent constitutions. 

In the older Northern constitutions, and in nearly all the more 
recent constitutions of all the States, ample provision is made 
for the creation and maintenance of schools. Even universities 
are the object of popular zeal, though a zeal not always accord¬ 
ing to knowledge. Most Western constitutions direct their 
establishment and support from public funds or land grants. 3 

1 So Kentucky (Const, of 1891, § 243) and North Dakota (Const, of 1889, 
§ 209) prohibit the labour of children under twelve. Wyoming forbids the em¬ 
ployment of girls or women in mines. 

2 So Mississippi (Const, of 1890, § 262). 

3 Mississippi seems to seek the political education of the legislator by re¬ 
quiring him to swear to read the Constitution or have it read to him. 



462 


THE STATE GOVERNMENTS 


PART II 


Some of the later constitutions contain significant provisions 
intended to propitiate labour. Thus Wyoming, California, 
Utah, and Idaho declare that eight hours shall be a lawful day’s 
work on all State and municipal works, Wyoming adding “in 
all mines.” Many prohibit the letting out of convict labour ; 
and several prohibit contracts by which employers may attempt 
to escape from liability for accidents to their workpeople. 
Mississippi abolishes (1890), so far as concerns railroads, the 
established legal doctrine of an employer’s non-liability for 
accidents caused to a workman by the fault of a fellow-workman. 

Although a Constitution is the fundamental and supreme law 
of the State, one must not conclude that its provisions are any 
better observed and enforced than those of an ordinary statute. 
When an offence is thought worthy of being specially mentioned 
in a constitution, this may happen because it is specially fre¬ 
quent, and because men fear that the legislature may shrink 
from applying due severity to repress it, or the public prosecut¬ 
ing authorities may wink at it. 1 Certain it is that in many in¬ 
stances the penalties threatened by constitutions fail to attain 
their object. For instance, the constitutions of most of the 
Southern States have for many years past declared duellists, 
and even persons who abet a duel by carrying a challenge, 
incapable of office, or of sitting in the legislature. This may have 
checked the formal duel by challenge, which is now rarely heard 
of, but the practice of private warfare does not seem to have 
declined in Mississippi, Texas, or Arkansas, where these provi¬ 
sions exist. Virginia had such a provision in her constitution of 
1830. She repeated it in her constitution of 1850, adding, 
however, that the disqualification should not attach to those 
who had offended previously — i.e. in violation of the consti¬ 
tution of 1830. 2 Shooting at sight, not uncommon in some parts, 

1 This is said to have happened in some States as respects lotteries. * 

2 “The General Assembly may provide that no person shall be capable of 
holding or being elected to any post of profit, trust, or emolument, civil or 
military, legislative, executive, or judicial, under the government of this com¬ 
monwealth who shall hereafter fight a duel, or send or accept a challenge to 
fight a duel, the probable issue of which may be the death of the challenger or 
challenged, or who shall be second to either party, or shall in any manner aid 
or assist in such duel, or shall be knowingly the bearer of such challenge or 
acceptance ; but no person shall be so disqualified by reason of his having 
heretofore fought such duel or sent or accepted such challenge, or been second 
in such duel, or bearer of such challenge or acceptance” (Constitution of 
1830, Art. iii. § 12, repeated in Constitution of 1850, Art. iv. § 17). In her 
Constitution of 187Q Virginia, not content with suggesting to the legislature 



chap, xxxviii DEVELOPMENT OF CONSTITUTIONS 


463 


is neither morally nor socially an improvement on duelling, 
though apparently exempt from these constitutional penalties. 

New York has been so much exercised on the subject of 
bribery and corruption, as to declare (amendments of 1874), 
not only that every member of the legislature and every officer 
shall take an oath that he has given nothing as a consideration 
for any vote received for him, and that the legislature shall pass 
laws excluding from the suffrage all persons convicted of bribery 
or of any infamous crime, but also that the giving or offering to or 
receiving by an officer of any bribe shall be a felony. These 
provisions are further strengthened in her Constitution of 
1894. The recent constitutions of North Dakota, Montana, 
and Wyoming declare log-rolling to be bribery. South 
Dakota requires her legislators and officers to swear that 
they have not received and will not receive a free pass over a 
railroad for any vote or influence they may give, while Kentucky 
deprives of office (ipso facto) any legislative public officer or 
judge who accepts such a favour. And lobbying, which is 
openly practised in every building where a legislature meets, is 
declared by California to be a felony, and by Georgia to be a 
crime. 

to disqualify duellists, did this directly by Art. iii. § 3. Many Constitutions 
now declare duellists disqualified for office, and others add a disqualification 
for the franchise. Nearly all are Southern and Western States. Kentucky 
(Const, of 1891) requires all officers, members'of the General Assembly, and 
persons being admitted to the bar to take an oath that they have not fought 
a duel since the adoption of the Constitution, nor aided any person in so offending. 



CHAPTER XXXIX 


DIRECT LEGISLATION BY THE PEOPLE 

The difficulties and defects inherent in the method of legis¬ 
lating by a Constitution are obvious enough. Inasmuch as 
the people cannot be expected to distinguish carefully between 
what is and what is not proper for a fundamental instrument, 
there arises an inconvenient as well as unscientific mixture 
and confusion of private law and administrative regulation 
with the frame of government and the general doctrines of 
public law. This mixture, and the practice of placing in the 
Constitution directions to the legislature to legislate in a cer¬ 
tain sense, or for certain purposes, embarrass a legislature in 
its working by raising at every turn questions of its compe¬ 
tence to legislate, and of the agreement between its acts and 
the directions contained in the Constitution. And as the legis¬ 
lature is seldom either careful or well-advised, there follows in 
due course an abundant crop of questions as to the constitu¬ 
tionality of statutes, alleged by those whom they affect preju¬ 
dicially in any particular instance to be either in substance 
inconsistent with the Constitution, or such as the legislature 
was expressly forbidden by it to pass. These inconveniences 
are no doubt slighter in America than they would be in Europe, 
because the lawyers and the judges have had so much experi¬ 
ence in dealing with questions of constitutional conflict and 
ultra vires legislation that they now handle them with amaz¬ 
ing dexterity. Still, they are serious, and such as a well-ordered 
government ought to avoid. The habit of putting into the 
Constitution matters proper for an ordinary statute has the 
further disadvantage that it heightens the difficulty of correct¬ 
ing a mistake or supplying an omission. The process of amend¬ 
ing a constitution even in one specific point is a slow one, to 
which neither the legislature, as the proposing authority, nor 
the people, as the sanctioning authority, willingly resort. Hence 

464 


chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 465 


blemishes remain and are tolerated, which a country possessing, 
like England, a sovereign legislature would correct in the next 
session of Parliament without trouble or delay. 

It is sometimes difficult to induce the people to take a proper 
interest in the amendment of the Constitution. In those 
States where a majority of all the qualified voters, and not 
merely of those voting, is required to affirm an amendment, it 
often happens that the requisite majority cannot be obtained 
owing to the small number who vote. 1 This has its good side, 
for it is a check on hasty or frequent change. But it adds greatly 
to the difficulty of working a rigid or supreme Constitution, 
that you may find an admitted, even if not very grave evil, to be 
practically irremovable, because the mass of the people cannot 
be induced to care enough about the matter to come to the polls, 
and there deliver their judgment upon it. 

These defects are so obvious that we may expect to find cor¬ 
respondingly strong grounds for the maintenance, and indeed 
the steady extension, of the plan of legislating by and through 
a Constitution. What are these grounds ? Why does Ameri¬ 
can practice tend more and more to remove legislation from 
the legislature and entrust it to the people ? 

One could quite well imagine the several State governments 
working without fundamental instruments to control them. 
In a Federal government which rests on, or at least which 
began from, a compact between a number of originally sepa¬ 
rate communities, the advantages of having the' relations of 
these communities to one another and to the central authority 
defined by an instrument placed beyond the reach of the ordi¬ 
nary legislature, and not susceptible of easy change, are clear 
and strong. Such an instrument secures for the rights of each 
member a guarantee placed above the impulses of a chance 
majority. The case is quite different when we come to a single 
homogeneous community. Each American State might now, if 
it so pleased, conduct its own business, and govern its citizens 
as a commonwealth “at common law,” with a sovereign legis¬ 
lature, whose statutes formed the highest expression of popular 
will. Nor need it do so upon the cabinet system of the British 
colonies. It might retain the separation from the legislature of 
the executive governor, elected by the people, and exercising 
his veto on their behalf, and yet dispense altogether with a rigid 

1 This happened more than once of late years in Kentucky and Delaware. 

2 H 



466 


THE STATE GOVERNMENTS 


PART II 


fundamental constitution, being content to vest in its repre¬ 
sentatives and governor the plenitude of its own powers. 
This, however, no American State does, or has ever done, 
or is likely to do. And the question why it does not 
suggests a point of interest for Europeans as well as for 
Americans. 

In the republics of the ancient world, where representative 
assemblies were unknown, legislative power rested with the 
citizens, meeting in what we should now call primary assem¬ 
blies, such as the Ecclesia of Syracuse or the Comitia of Rome. 
The same plan prevailed in the early Teutonic tribes, where the 
assembly of the freemen exercised all such powers as did not be¬ 
long to the king. The laws of the kings of the Angles and Saxons, 
the capitularies of Charlemagne, were promulgated in assemblies 
of the nation, and maybe said, though emanating from the prince, 
to have been enacted by the people. During the Middle Ages, 
the ancient assemblies died out, and the right of making laws 
passed either to the sovereign or to a body of magnates and 
representatives surrounding the sovereign, such as the English 
Parliament, the older scheme surviving only in such primitive 
communities as some of the Swiss cantons. The first reappear¬ 
ance in modern Europe of the method of direct legislation by 
the people is, so far as I know, the provision of the French 
Constitution framed by the National Convention in 1793, which 
directs that any law proposed by the legislative body shall be 
published and sent to all the communes of the Republic, whose 
primary assemblies shall be convoked to vote upon it, in case 
objections to it have been raised by one-tenth of these primary 
assemblies in a majority of the departments. In recent times 
the plan has become familiar by its introduction, not only into 
most of the cantons of Switzerland, but into the Swiss Federal 
Republic, which constantly applies it, under the name of Refer¬ 
endum, by submitting to the vote of the people for approval or 
rejection laws passed by the Federal legislature. 1 

1 The Swiss Federal Constitution provides that any Federal law and Federal 
resolution of general application and not of an urgent character, must on the 
demand of eight cantons or of 30,000 voters be submitted to popular vote for 
acceptance or rejection. This vote is frequently in the negative. See Swiss 
Federal Constitution, Art. 89 ; and the remarks of Ex-President Numa Droz 
in his Instruction civique, § 172. In nine cantons the submission of laws to 
popular vote was in 1907 compulsory and in eight facultatif. A referendum 
exists in every canton except Fribourg, Valais and the four which retain a Lan- 
desgemeinde. See S. Deploige, Le Referendum en Suisse, Brussels, 1892. In 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 467 


In Britain the influence of the same idea may be discovered 
in two phenomena of recent years. One is the proposal* fre¬ 
quently made to refer to the direct vote of the inhabitants of 
a town or other local area the enactment of some ordinance 
affecting that district: as, for instance, one determining whether 
a rate shall be levied for a free library, or whether licences shall 
be granted for the sale, within the district, of intoxicating 
liquors. This method of deciding an issue, commonly known 
as Local Option, is a species of referendum. It differs from 
the Swiss form, not merely in being locally restricted, but rather 
in the fact that it is put to the people, not for the sake of confirm¬ 
ing an Act of the legislature, but of deciding whether a certain 
general Act shall or shall not be operative in a given area. But 
the principle is the same; it is a transference of legislative 
authority from a representative body, whether the parliament 
of the nation or the parish vestry or municipal council of the 
town (as the case may be), to the voters at the polls. 

The other English illustration may seem far fetched, but on 
examination will be seen to involve the same idea. It is now be¬ 
ginning to be maintained as a constitutional doctrine, that when 
any large measure of change is carried through the House of 
Commons, the House of Lords has a right to reject it for the 
purpose of compelling a dissolution of Parliament, that is, an 
appeal to the voters. The doctrine is as warmly denied as it is 
asserted; but the material point is that many educated men 
contend that the House of Commons is not morally, though of 
course it is legally, entitled to pass a bill seriously changing the 
Constitution, which was not submitted to the electors at the 
preceding general election. A general election, although in 
form a choice of particular persons as members, has now prac¬ 
tically become an expression of popular opinion on the two or 
three leading measures then propounded and discussed by the 
party leaders, as well as a vote of confidence or no confidence in 
the Ministry of the day. It is in substance a vote upon those 
measures; although, of course, a vote only on their general 
principles, and not, like the Swiss Referendum, upon the statute 
which the legislature has passed. Even therefore in a country 
which clings to and founds itself upon the absolute supremacy of 

1891 the Federal Constitution was amended by introducing the provision called 
the Initiative, which enables 50,000 voters to demand the submission of a proposi¬ 
tion to popular vote. 



468 


THE STATE GOVERNMENTS 


PART n 


its representative chamber, the notion of a direct appeal to the 
people has made progress. 1 

In the United States, which I need hardly say has in this matter 
been nowise affected by France or Switzerland or England, 
but has developed on its own lines, the conception that the people 
(i.e. the citizens at large) are and ought of right to be the supreme 
legislators, began by popular action in the form of the enactment 
or amendment of a Constitution. Instead of, like the Swiss, sub¬ 
mitting ordinary laws to the voters after they have passed the 
legislature, the Americans take subjects which belong to ordinary 
legislation out of the category of statutes, place them in the Con¬ 
stitution, and then handle them as parts of this fundamental 
instrument. They are not called laws ; but laws they are to all 
intents and purposes, differing from statutes only in being 
enacted by an authority which is not a constant but an occa¬ 
sional body, called into action only when a Convention or a 
legislature lays propositions before it. 

I have already explained the historical origin of this system, 
how it sprang from the fact that the Constitutions of the colo¬ 
nies having been given to them by an external authority superior 
to the colonial legislature, the people of each State, seeing that 
they could no longer obtain changes in their Constitution from 
Britain, assumed to themselves the right and duty of remodelling 
it; putting the collective citizendom of the State into the place 
of the British Crown as sovereign. The business of creating 
or remodelling an independent commonwealth was to their think¬ 
ing too great a matter to be left to the ordinary organs of State 
life. This feeling, which had begun to grow from 1776 onwards, 
was much strengthened by the manner in which the Federal Con¬ 
stitution was enacted in 1788 by State conventions. It seemed 
to have thus received a specially solemn ratification; and even 
the Federal legislature, which henceforth was the centre of 
national politics, was placed far beneath the document which 
expressed the will of the people as a whole. 

1 Much importance has come to be attached in England to casual parlia¬ 
mentary elections occurring when any important measure is before Parliament, 
because such an election is taken to indicate the attitude of the people gener¬ 
ally towards the measure, and by consequence the judgment they would pro¬ 
nounce were a general election held. There have been instances in which a 
measure pending in Parliament was dropped, because the result of the “by- 
election” was taken to indicate that it displeased the people. 

There are now those in England who advocate the introduction of a Referen¬ 
dum as a method to be applied to certain classes of Acts. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 469 


As the republic went on working out both in theory and in 
practice those conceptions of democracy and popular sover¬ 
eignty which had been only vaguely apprehended when enun¬ 
ciated at the Revolution, the faith of the average man in himself 
became stronger, his love of equality greater, his desire, not 
only to rule, but to rule directly in his own proper person, more 
constant. These sentiments would have told still further upon 
State governments had they not found large scope in local gov¬ 
ernment. However, even in State affairs they made it (in the 
northern States) an article of faith that no Constitution could 
be enacted save by the direct vote of the citizens; and they 
inclined the citizens to seize such chances as occurred of mak¬ 
ing laws for themselves in their own way. Concurrently with 
the growth of these tendencies there had been a decline in the 
quality of the State legislatures, and of the legislation which 
they turned out. They were regarded with less respect; they 
inspired less confidence. Hence the people had the further 
excuse for superseding the legislature, that they might reason¬ 
ably fear it would neglect or spoil the work they desired to see 
done. 

Instead of being stimulated by this distrust to mend their 
ways and recover their former powers, the State legislatures 
fell in with the tendency, and promoted their own superses¬ 
sion. The chief interest of their members, as will be explained 
later, is in the passing of special or local Acts, not of general 
public legislation. They are extremely timid, easily swayed by 
any active section of opinion, and afraid to stir when placed 
between the opposite fires of two such sections, as for instance, 
between the Prohibitionists and the liquor-sellers. Hence they 
welcomed the direct intervention of the people as relieving them 
of embarrassing problems. They began to refer to the decision 
of a popular vote matters clearly within their own proper 
competence, such as the question of liquor traffic, or the crea¬ 
tion of a system of gratuitous schools. This happened as 
far back as 1850-60. Presently they began to wash their 
hands by the same device of the troublesome and jealousy- 
provoking question where the capital of the State, or its lead¬ 
ing public institutions, should be u located.’ 71 In New York, 

1 This is now the general rule in new constitutions. Washington provides 
that though a bare majority may settle where the seat of State government 
shall be, a majority of two-thirds shall be required to change it. 



470 


THE STATE GOVERNMENTS 


PART II 


the legislature having been long distracted and perplexed by 
the question whether articles made by convicts in the State 
prisons should be allowed to be sold, and so to compete with 
articles made by private manufacturers, recently resolved to 
invite the opinion of the multitude, and accordingly passed an 
Act under which the question was voted on over the whole 
State. They could not (except of course by proposing a con¬ 
stitutional amendment) enable the people to legislate on the 
point; for it has been often held by American courts that the 
legislature, having received a delegated power of law-making, 
cannot delegate that power to any other person or body . 1 But 
they could ask the people to advise them how they should legis¬ 
late ; and having obtained its view in this manner, could pass 
a statute in conformity with its wishes. 

The methods by which legislative power is directly vested in 
the American voters are four. The first is the enactment or 
amendment by them of a Constitution. Here the likeness to 
the Swiss Referendum is close, because the particular provision 
to be enacted is first drafted and passed by the Convention or 
legislature (as the case may be) and then submitted to the people. 
How wide the scope of this method is will be realized by one 
who has followed the account already given of the number 
and variety of the topics dealt with by State Constitutions. 


1 According to the maxim Delegata potestas non delegatur, a maxim which 
would not apply in England, because there Parliament has a,n original and not 
a delegated authority. 

Judge Cooley says : “One of the settled maxims of constitutional law is that 
the power conferred upon the legislature to make laws cannot be delegated by 
that department to any other body or authority. Where the sovereign power 
of the State has located the authority, there it must remain ; and by the con¬ 
stitutional authority alone the laws must be made until the Constitution itself 
is changed. The power to whose judgment, wisdom, and patriotism, his high 
prerogative has been entrusted cannot relieve itself of the responsibility by 
choosing other agencies upon which the power shall be devolved” ( Constit. 
Limit., p. 141). He quotes from Locke (Civil Government, § 142) the remark 
that “The legislature neither must nor can transfer the power of making laws to 
anybody else, or place it anywhere but where the people have.” This is one of 
Locke’s “bounds set to the legislative power of every commonwealth in every 
form of government” ; but it has not precluded the British Parliament from 
delegating large, and in many cases truly legislative, powers to particular 
persons or authorities, such as the Crown in Council, or the Council of Judges. 

There has been much difference of opinion among American courts as to the 
extent to which a legislature may refer the operation of a general law to popu¬ 
lar vote in a locality, but “the clear weight of authority is in support of legis¬ 
lation of the nature commonly known as local option laws.” — Cooley, ut supra, 
p. 152 ; and see the cases collected in his notes. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 471 


It is not uncommon for proposals submitted by the 
legislature in the form of constitutional amendments to be 
rejected by the people. Thus in Indiana, Nebraska, (twice 
in) Ohio, and Oregon, the legislature submitted amendments 
extending the suffrage to women, and the people in all four 
States refused the extension. So West Virginia by her consti¬ 
tution of 1872, and South Dakota by hers of 1889, submitted 
proposals for proportional representation, which failed of ac¬ 
ceptance. 1 

The second method is the submission to popular vote, pursu¬ 
ant to the provisions of the Constitution, of a proposal or pro¬ 
posals therein specified. If such a proposal has been first 
passed by the legislature, we have here also a case resembling 
the Swiss Referendum. If, however, the legislature have not 
given their decision on the proposal, but the popular vote at 
the polls takes place in obedience to a direction in that behalf 
contained in the Constitution, this is not strictly a Referendum, 
but a case of legislation by the people alone, as if the voters of 
the State were all gathered in one assembly. Examples of 
this method, in both its forms, abound in the more recent 
Constitutions. So far back as 1848 we find Wisconsin refer¬ 
ring it to the voters to decide whether or no banks shall be 
chartered. 2 Minnesota declares that a certain class of railway 
laws shall not take effect unless submitted to and ratified by a 
majority of the electors. And she provides, by a later amend¬ 
ment to her Constitution, that “the moneys belonging to the 
internal improvement land fund shall never be appropriated 
for any purpose till the enactment for that purpose shall have 
been approved by a majority of the electors of the State, voting 
at the annual general election following the passage of the 
Act.” 3 In this last instance the referendum goes the length of 
constituting the voters the ultimate financial authority for the 
State, withdrawing from the legislature what might seem the 
oldest and most essential of its functions. So in not a few States 
no debts beyond a certain specified amount may be contracted 

1 Amendments to the Constitution are now frequently made by the Initiative 
in States which have adopted that institution. 

2 Constitution of 1848, Art. xi. § 5. — This provision stood till 1902, when it 
was repealed by an amendment which gave the legislature power to regulate 
by general laws the creation and rules of banks. See also the Constitutions 
of Iowa, Michigan, Illinois, Kansas, Ohio, and Missouri. 

3 Amendments of 1871 and 1874 to the Constitution of 1857. 



472 


THE STATE GOVERNMENTS 


PART II 


except in pursuance of a vote of the people : and in others the 
rate of taxation is limited by fixing it at a certain ratio to 
the total valuation of the State, subject to a power to in¬ 
crease the same by popular vote. And in California no law 
changing the seat of the State government is valid unless 
approved by the people. 

The third and fourth methods are more recent than either of 
the preceding; and mark a further long step in the extension 
of direct popular action. One is the true Swiss Referendum, i.e. 
the submission to the people for their approval or rejection of 
ordinary laws passed by the State Legislature ; the other the 
Swiss Initiative, i.e. a power for a certain proportion of voters 
to propose either ordinary laws or amendments to the State 
Constitution. The State which has gone farthest in this path 
is Oklahoma, admitted to the Union in 1907. In her Consti¬ 
tution (§52), “the people reserve to themselves the power to 
propose laws and amendments to the Constitution and to enact 
or reject the same at the polls independent of the Legislature, 
and also reserve power at their own option to approve or reject 
at the polls any act of the Legislature (§ 53). The first power 
reserved by the people is the Initiative, and eight per centum 
of the legal voters shall have the right to propose any legislative 
measure and fifteen per centum of the legal voters shall have 
the right to propose amendments to the Constitution by 
petition. . . . The second power is the Referendum, and it 
may be ordered (except as to laws necessary for the immediate 
preservation of the public peace, health, or safety) either by 
petitions signed by five per centum of the legal voters or by the 
Legislature as other bills are enacted.” The veto power of the 
Governor is not to extend to measures voted on by the people. 
The referendum may be demanded against items or parts of 
a bill. Montana, Oregon, Nevada, South Dakota, and Utah 
have also referendum provisions generally similar. 

In Oregon, the State which has made most use of these new 
methods, since the Initiative and Referendum were introduced 
in 1904, the people had down to the end of 1912 voted upon 76 
Initiative proposals, of which 33 were carried and 43 rejected ; 
also upon 11 Referendum proposals submitted either on de¬ 
mand of five per cent of the voters or referred to the voters by 
the legislature. Of these 5 were carried and 6 rejected. 1 In 

1 I take these figures from the very instructive book of President Lowell, 
Public Opinion and Popular Government. 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 473 


Oregon the Governor has no veto on popular votes. Argu¬ 
ments prepared for and against proposals so submitted may be 
prepared and printed by the proposers and opponents, the cost 
of posting a copy to every voter being paid by the State. 

The same principle of popular vote has been widely applied 
to local as well as to State government. Oklahoma applies 
it to every county and district, and to every municipality. 
Many recent Constitutions provide that the approval of the 
people at the polls shall be needed in order to validate a de¬ 
cision of the city, or county, or school district, or township 
authority regarding borrowing, or taxing, or lending public 
funds to some enterprise it may be desired to assist. Licens¬ 
ing questions are usually left to popular determination alone, 
with no interference by the local representative authority: 
while as respects municipal government, California took the 
novel course of allowing cities of more than 10,000 inhabi¬ 
tants to make their own charters, by a drafting board of fif¬ 
teen freeholders and a ratifying vote of the people, the State 
legislature having only a veto on the charter en bloc. 1 Other 
states have followed. 

The application of the same principle to smaller areas has 
the advantage of defeating many jobs which local councils 
might desire to put through, but may impose on the average 
voter a heavier burden than his knowledge and capacity fit 
him to bear. For instance at a municipal election in the city 
of Portland, Oregon, in June, 1909, the elector had to decide not 
only between 25 candidates for six offices, but also to vote on 
35 distinct and separate legislative propositions, some of them 
relating to matters of small administrative detail. 2 

Thus the ancient scheme of vesting ordinary legislative power, 
as well as constitution-making power, in the whole body of 
citizens has been now (1913) adopted by 17 States and seems 
likely to in other states also, for it finds favour as a legitimate 
development of the principle of popular sovereignty. It is 
advocated with special zeal by many of the leaders of the Labour 

1 Amendment of 1887 to the Constitution of California. Washington (Const, 
of 1889, Art. xi. § 12), in adopting a similar provision, restricts it to cities with a 
population of 20,000 or over, but drops the requirement of approval by the 
State Legislature. See, for specimens of popular vote provisions for local 
areas, Constitution of Oklahoma, p. 739, post. 

2 I quote this from an interesting pamphlet by Professor Beard, entitled The 
Ballot's Burden. 



474 


THE STATE GOVERNMENTS 


PART II 


party or those who promote such legislation as that party 
desires. 

What are the practical advantages of the plan of direct leg¬ 
islation by the people in its various forms? Its demerits are 
obvious. Besides those I have already stated, it might be ex¬ 
pected to lower the authority and sense of responsibility in the 
legislature; and it refers matters needing much elucidation by 
debate to the determination of those who cannot, on account 
of their numbers, meet together for discussion, and many of 
whom may have never thought about the matter. These con¬ 
siderations will to many Europeans appear decisive against it. 
The proper course, they will say, is to improve the legislatures. 
The less you trust them, the worse they will be. They may be 
ignorant; yet not so ignorant as the masses. 

But the improvement of the legislatures is just what the 
Americans despair of, or, as they prefer to say, have not time 
to attend to. Hence they fall back on the direct popular vote 
as the best course available under the circumstances of the case, 
and in such a world as the present. Though some claim that it 
has an educative effect on the people, this is not the argument 
chiefly employed to advocate it. The ground taken is rather 
this, that the mass of the people are equal in intelligence and 
character to the average State legislator, and are exposed to 
fewer temptations. The legislator can be “got at,” the people 
cannot. The personal interest of the individual legislator in 
passing a measure for chartering banks or spending the internal 
improvement fund may be greater than his interest as one of the 
community in preventing bad laws. It will be otherwise with 
the bulk of the citizens. The legislator may be subjected by the 
advocates of women’s suffrage or liquor prohibition to a pressure 
irresistible by ordinary mortals ; but the citizens are too numer¬ 
ous to be all wheedled or threatened. Hence they can and do 
reject proposals which the legislature has assented to. Nor 
should it be forgotten that in a country where law depends for 
its force on the consent of the governed, it is eminently desirable 
that law should not outrun popular sentiment, but have the whole 
weight of the people’s deliverance behind it . 1 

1 In the case of local option there is the further argument that to commit 
the question of licences to a local representative is virtually to make the elec¬ 
tion of that authority turn upon this single question, and that there is an ad¬ 
vantage in making a restriction on the freedom of the individual issue directly 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 475 


A brilliant, though severe, critic of Canadian institutions 1 has 
deplored the want of some similar arrangement in the several 
Provinces of the Dominion. Having remarked that the veto 
of the lieutenant-governor on the Acts of a Provincial legis¬ 
lature is in practice a nullity, and that the central government 
never vetoes such Acts except where they are held to exceed 
the constitutional competence of the legislature, he urges that 
what is needed to cure the faults of Provincial legislation is 
to borrow the American plan of submitting constitutional 
amendments (and, it may now be added, laws also) to popular 
vote. “ The people cannot be lobbied, wheedled, or bull-dozed ; 
the people is not in fear of its re-election if it throws out some¬ 
thing supported by the Irish, the Prohibitionist, the Catholic, 
or the Methodist vote.” 

If the practice of recasting or amending State Constitutions 
were to grow common, and if the Initiative and Referendum 
were to be methods in frequent use, one of the advantages of 
direct legislation by the people would disappear, for the sense of 
permanence would be gone, and while the same mutability which 
is now possible in ordinary statutes would become possible in 
the provisions of the fundamental law, the habit of passing 
ordinary laws under momentary impulse might prove mis¬ 
chievous. But this fault of small democracies , 2 especially when 
ruled by primary assemblies, is perhaps less likely to recur in 
large democracies, such as most States have now become, nor 
does it seem to be on the increase among them. Reference to 
the people may act as a conservative force ; that is to say, there 
may be occasions when a measure which a legislature would pass, 
either at the bidding of a heated party majority or to gain the 
support of a group of persons holding the balance of voting 
power, or under the covert influence of those who seek some 
private advantage, will be rejected by the whole body of the 
citizens because their minds are cooler or their view of the 
general interest less biassed by special predilections or interests. 

from the vote of the people, who may feel themselves doubly bound to enforce 
what they have directly enacted. 

1 Mr. Goldwin Smith. 

2 So frequent a charge against the Greek republics and the Italian republics 
of the Middle Ages, as Dante says, apostrophizing Florence — 


“Ch’ a mezzo Novembre, 

Non giunge quel che tu d’ Ottobre fili.’’ 




476 


THE STATE GOVERNMENTS 


PART II 


In England, and indeed in most European countries, repre¬ 
sentative government has been hitherto an institution with 
markedly conservative elements, because the legislating repre¬ 
sentatives have generally belonged to the wealthy or well-born 
and educated classes, who, having something to lose by change, 
are disinclined to it, who have been looked up to by the masses, 
and who have been imperfectly responsive to popular impulses. 
American legislatures have none of these features. The men 
are not superior to the multitude, partly because the multitude 
is tolerably educated and tolerably well off. The multitude 
does not defer to them. They are horribly afraid of it, and 
indeed cf any noisy section in it. They live in the breath of its 
favour; they hasten to fulfil its behests almost before they are 
uttered. Accordingly an impulse or passion dominant among 
the citizens may tell at once on the legislature, and find expres¬ 
sion in a law, the checks being, not the caution of that body 
and its willingness to debate at length, but the power of some 
powerful group to stop a measure it dislikes, or possibly, the 
wisdom of a strong governor who may veto a bill which he thinks 
the people ought to have more time to consider. It may also 
happen that the legislature proves incapable of embodying in a 
practical form the wishes manifested by the people. Hence in the 
American States representative government has not necessarily 
that conservative quality which Europeans ascribe to it, whereas 
the direct vote of the people is the vote of men who are gen¬ 
erally better instructed than the European masses, more ex¬ 
perienced in politics, more sensible of their interest in the 
stability of the country. In its effect upon the State legislature, 
the Referendum may therefore, in some States at least, be rather 
a bit and bridle than a spur. But in the new communities of 
the West it is more likely to be used as a means of effecting 
changes which they do not expect to get so speedily from the 
legislature in the drastic form and with the promptitude which 
they desire. 

This method of legislation by means of a Constitution or 
amendments thereto, arising from sentiments and under condi¬ 
tions in many respects similar to those which have produced the 
referendum in Switzerland, is an interesting illustration of the 
tendency of institutions, like streams, to wear their channels 
deeper. A historical accident, so to speak, suggested to the 
Americans the subjection of their legislatures to a fundamental 



chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 47? 


law : and after a while the invention came to be used for other 
purposes more extensively than its creators foresaw. It became, 
moreover, serviceable in a way which those who first used it did 
not contemplate, though they are well pleased with the result. 
It acts as a restraint not only on the faults and follies of legis¬ 
lators, but on the people themselves. Having solemnly bound 
themselves by their Constitution to certain rules and principles, 
the people come to respect those principles. They have parted 
with powers which they might be tempted in a moment of excite¬ 
ment, or under the pressure of suffering, to abuse through their 
too pliant representatives; and although they can resume 
these powers by enacting a new Constitution or amending the 
old one, the process of resumption requires time, and involves 
steps which secure care and deliberation, while allowing passion 
to cool, and the prospect of a natural relief from economic evils 
to appear. Thus the completeness and consistency with which 
the principle of direct sovereignty of the whole people is carried 
out in America has tended to check revolutionary tendencies, 
by pointing out a peaceful and legal method for the effect¬ 
ing of political or economical changes. So much may be said 
as to the States that have remained content with the process 
of legislation by amendments in Constitutions. But now some 
of the more experimentally minded States have gone further. 
They have simplified the process of direct popular legislation 
by getting rid of the machinery of a Convention and of legis¬ 
latively drafted amendments, and they empower the people 
to vote directly on whatever proposal a percentage of the citi¬ 
zens may propose or whatever law an even smaller percentage 
may require to have submitted for the expression of the people’s 
will. The Initiative and Referendum are natural developments 
of the process which began with the introduction into Consti¬ 
tutions of what were really ordinary laws, and no one can tell 
how far the new movement may spread. 

State Constitutions, considered as laws drafted by a Con¬ 
vention and enacted by the people at large, are better both in 
form and substance than laws made by the legislature, because 
they are the work of abler, or at any rate of honester, men, 
acting under a special commission which imposes special re¬ 
sponsibilities on them. The appointment of a Constitutional 
Convention excites general interest in a State. Its functions 
are weighty, far transcending those of the regular legislature. 




478 


THE STATE GOVERNMENTS 


PART II 


Hence some of the best men in the State desire a seat in it, 
and, in particular, eminent lawyers become candidates, know¬ 
ing how much it will affect the law they practise. It is there¬ 
fore a body superior in composition to either the Senate or the 
House of a State. Its proceedings are followed with closer 
attention; and it is exempt from the temptations with which 
the power of disposing of public funds or public utilities be¬ 
strews the path of ordinary legislators; its debates are more 
instructive ; its conclusions are more carefully weighed, because 
they cannot be readily reversed. 1 Or if the work of altering 
the constitution is carried out by a series of amendments, these 
are likely to be more fully considered by the legislature than 
ordinary statutes would be, and to be framed with more regard 
to clearness and precision. 

In the interval between the settlement by the convention of 
its draft constitution, or by the legislature of its draft amend¬ 
ments, and the putting of the matter to the vote of the people, 
there is copious discussion in the press and at public meetings, 
so that the citizens often go well prepared to the polls. An 
all-pervading press does the work which speeches did in the 
ancient republics, and the fact that constitutions and amend¬ 
ments so submitted are frequently rejected, shows that the peo¬ 
ple, whether they act wisely or not, do not at any rate surrender 
themselves blindly to the judgment of a convention, or obedi¬ 
ently adopt the proposals of a legislature. 

These merits are indeed not always claimable for conventions, 
or, in particular, for the more recent constitutions they have 
framed, much less for individual amendments. The Constitu¬ 
tion of California of 1879 (whereof more in a later chapter) is 
an instance to the contrary; nor have the subsequent Conven¬ 
tions even of such old States as Louisiana and Kentucky shown 
all the judgment that the problems before them required. But 
a general survey of this branch of our inquiry leads to the con¬ 
clusion that the peoples of the several States, in the exercise of 
this their highest function, have not, on the whole, shown much 
of that haste, that recklessness, that love of change for the sake 
of change, with which European theorists, both ancient and mod- 


1 Where it is desired not to complicate the acceptance or rejection of a draft 
constitution with the enactment of some particular provision, that provision is 
separately submitted to the people; if they approve it, it is inserted in the 
constitution. 




chap, xxxix DIRECT LEGISLATION BY THE PEOPLE 479 


ern, have been wont to credit democracy ; and that the method 
of direct legislation by the citizens, liable as it doubtless is to 
abuse, causes, in the present condition of the States, fewer evils 
than it prevents. 

It would doubtless be better, if good legislatures were attain¬ 
able, to leave the enactment of what are really mere statutes 
to the legislature, instead of putting them in a Constitution ; 
and the Initiative is a supersession of the legislature which tends 
even more to reduce its authority. But if good legislatures are 
unattainable, if it is impossible to raise the Senate and the 
House of each State above that low level at which (as we shall 
presently see) they now stand, then the system of direct popular 
action may be justified at least in some communities as a salu¬ 
tary effort of the forces which make for good government, 
opening for themselves a new channel. 

In making the Referendum and Initiative parts of the regular 
machinery of government instead of applying the popular vote 
only to the amendment of constitutions, Oregon, Oklahoma, 
and the other Western states above referred to, have taken what 
may prove to be a momentous new departure, for the will of the 
sovereign people can through these methods express itself far 
more promptly and easily than heretofore. Some American pub¬ 
licists argue that to empower the people of a State to set aside 
their legislature when they are so disposed is virtually to abandon 
that “republican form of government” which was in 1787 sup¬ 
posed to be identical with a representative form. This conten¬ 
tion ceases to be plausible when it is remembered that the oldest 
republics in the world, and many of the most famous, were 
ruled by primary, not by representative, assemblies. A more 
serious question has been raised by those who doubt the wisdom 
of arrangements that leave so much to the vote of a multitude 
which may act hastily, excited by the prospect of some benefit 
to be obtained, some grievance to be removed, through a 
sweeping and perhaps insufficiently debated change in the law. 

The risk of careless and even reckless measures is undeniable. 
But they may, in some States, be just as likely to proceed from 
a legislature as from the people voting at the polls, for the average 
of knowledge and judgment is not substantially lower among 
the voters than among those who compose the legislatures: 
and the safeguards provided by the rules restraining legis¬ 
lative action cannot always be relied upon. 



480 


THE STATE GOVERNMENTS 


PART II 


We must wait and watch for some time before venturing to 
pronounce a judgment upon the working of these new expedi¬ 
ents; nor does the experience of Switzerland furnish much 
guidance, so dissimilar are the social conditions and the political 
habits of the two nations . 1 

1 For a thoughtful judgment upon the new system see President Lowell’s 
admirable book already referred to. Up to November 1913, Initiative and 
Referendum Statewide in their operation had been adopted by S. Dakota 
(which led the way in 1898), Utah, Oregon, Nevada, Montana, Oklahoma, 
Maine, Missouri, Arkansas, Colorado, Arizona, California, Nebraska, Washing¬ 
ton, Idaho, Ohio, and Michigan. 

So far as could be ascertained in 1913, the Initiative, Referendum, and Recall 
exist in respect of municipal government either generally, or for such cities as 
may adopt them by popular vote, in all states except Virginia, New York, New 
Hampshire, Vermont, Delaware and Indiana. 



CHAPTER XL 


STATE GOVERNMENTS : THE LEGISLATURE 

The similarity of the frame of government in the forty-eight 
republics which make up the United States, a similarity which 
appears the more remarkable when we remember that each of 
these republics is independent and self-determined as respects 
its frame of government, is due to the common source whence 
the governments flow. They are all copies, some immediate, 
some mediate, of ancient English institutions, viz. chartered self- 
governing corporations, which, under the influence of English 
habits, and with the precedent of the English parliamentary 
system before their eyes, developed into governments resem¬ 
bling that of England in the eighteenth century. The thirteen 
colonies had up to 1776 been regulated by a charter from the 
British Crown, which, according to the best and oldest of all 
English traditions, allowed each the practical management 
of its own affairs. The charter contained a sort of skeleton 
constitution, which usage had clothed with nerves, muscles, and 
sinews, till it became a complete working system of free govern¬ 
ment. There was in each a governor, in two colonies chosen 
by the people, 1 in the rest nominated by the crown or the “pro¬ 
prietor”; there was a legislature; there were executive officers 
acting under the governor’s commission apd judges nominated 
by him ; there were local self-governing communities. In none, 
however, did there exist what we call cabinet government, i.e. 
the rule of the legislature through a committee of its own mem¬ 
bers, coupled with the irresponsibility of the permanent nominal 
head of the executive. This separation of the executive from 
the legislature, which naturally arose from the fact that the 
governor was an officer directly responsible to another power 
than the colonial legislature, viz. the British Crown, his own 

1 However, in Rhode Island the governor was chosen, not as now by the 
people at large, but by the Company assembled in general court, a body which 
passed into the legislature of the colony. See Charter of Rhode Island, 1663. 
In Connecticut the general court chose if the people failed to elect, or a sudden 
vacancy occurred. 

2 i 


481 


482 


THE STATE GOVERNMENTS 


PART II 


master to whom he stood or fell, 1 distinguishes the old colonial 
governments of North America from those of the British colonies 
of the present day, in all of which cabinet government prevails. 2 
The latter are copies of the present Constitution of England; 
the former resembled it as it existed in the first half of the 
eighteenth century before cabinet government had been fully 
developed. 

When the thirteen colonies became sovereign States at the 
Revolution, they preserved this frame of government, substi¬ 
tuting a governor chosen by the State for one appointed by the 
Crown. As the new States admitted to the Union after 1789 
successively formed their constitutions prior to their admission 
to the Union, each adopted the same scheme, its people imitat¬ 
ing, as was natural, the older commonwealths whence they 
came, and whose working they understood and admired. 3 They 
were the more inclined to do so because they found in the 
older constitutions that sharp separation of the executive, 
legislative, and judicial powers which the political philosophy 
of those days taught them to regard as essential to a free gov¬ 
ernment, and they all take this separation as their point of 
departure. 

I have observed in an earlier chapter that the influence on 
the framers of the Federal Constitution of the examples of free 
government which they found in their several States, had been 
profound. We may sketch out a sort of genealogy of Govern¬ 
ments as follows : — 

First. The English incorporated Company, a self-governing 
body with its governor, deputy-governor, and assistants chosen 
by the freemen of the company, and meeting in what is called 
the General Court or Assembly. 

Next. The Colonial Government, which out of this Company 
evolves a governor or executive head and a legislature, consist- 


1 Even in Connecticut and Rhode Island the governor, though chosen by the 
colony, was in a sense responsible to the Crown. It was through him as execu¬ 
tive head that the home government dealt with the colony. 

2 Of course in the British self-governing colonies the governor is still re¬ 
sponsible to the Crown, but this responsibility is confined within narrow limits 
by the responsibility of his ministers to the colonial legislature and by the wide 
powers of that legislature. 

3 Massachusetts tried for several years the scheme of a small council as the 
executive power representing the former Crown governor, but in 1780 she came 
back to the plan of a single governor, while retaining, as she still retains, a 
council surrounding him. 



chap, xl STATE GOVERNMENTS : THE LEGISLATURE 483 


ing of representatives chosen by the citizens and meeting in 
one or two chambers. 

Thirdly. The State Government, which is nothing but the 
colonial government developed and somewhat democratized, 
with a governor chosen originally by the legislature, now always 
by the people at large, and now in all cases with a legislature 
of two chambers. From the original thirteen States this form 
has spread over the Union and prevails in every State. 

Lastly. The Federal Government, modelled after the State 
Governments, with its President chosen, through electors, by 
the people, its two-chambered legislature, its judges named by 
the President . 1 

Out of such small beginnings have great things grown. 

It would be endless to describe the minor differences in the 
systems of the several States. I will sketch the outlines only, 
which, as already observed, are in the main the same everywhere. 

Every State has — 

An executive elective head, the governor. 

A number of other administrative officers. 

A legislature of two houses. 

A system of courts of justice. 

Various subordinate local self-governing communities, coun¬ 
ties, cities, townships, villages, school districts. 

The governor and the other chief officials are not now chosen 
by the legislature, as was the case under most of the older 
State Constitutions, but by the people. They are as far as 
possible disjoined from the legislature. Neither the governor 
nor any other State official can sit in a State legislature . 2 He 
cannot lead it. It cannot, except of course by passing statutes, 
restrain him. There can therefore be no question of any gov¬ 
ernment by ministers who link the executive to the legislature 
according to the system of the free countries of modern Europe 
and of the British colonies. 

1 One might add another generation at the beginning of this genealogy by 
deriving the English corporate company from the Roman collegia, and a gen¬ 
eration at the end by observing how much the constitution of modern Switzer¬ 
land owes to that of the United States. 

2 In Rhode Island, however, the lieutenant-governor is a member of the 
Senate, the governor presiding, but with only a casting vote. When the gov¬ 
ernor is absent, the lieutenant-governor presides, and has a casting vote besides 
his own vote as senator. In some States the lieutenant-governor presides over 
the Senate. 




484 


THE STATE GOVERNMENTS 


PART II 


Of these several powers it is best to begin by describing the 
legislature, because it is the strongest and most prominent. 

An American State legislature always consists of two houses, 
the smaller called the Senate, the larger usually called the 
House of Representatives, though in six States it is entitled 
“The Assembly,” and in three “The House of Delegates.” 
The origin of this very interesting feature is to be sought rather 
in history than in theory. It is due partly to the fact that 
in some colonies there had existed a small governor’s council 
in addition to the popular representative body, partly to 
a natural disposition to imitate the mother country with its 
Lords and Commons, a disposition which manifested itself 
both in colonial days and when the revolting States were giv¬ 
ing themselves new Constitutions, for up to 1776 some of the 
colonies had gone on with a legislature of one house only. 
Now, however, the need for two chambers is deemed an axiom 
of political science, being based on the belief that the innate 
tendency of an assembly to become hasty, tyrannical, and cor¬ 
rupt, needs to be checked by the co-existence of another house 
of equal authority. The Americans restrain their legislatures 
by dividing them, just as the Romans restrained their execu¬ 
tive by substituting two consuls for one king. The only States 
that ever tried to do with a single house were Pennsylvania, 
Georgia, and Vermont, all of whom gave it up : the first after 
four years’ experience, the second after twelve years, the last 
after fifty years. 1 It is with these trifling exceptions the quod 


1 Upon this subject of the division of the legislature, see Kent’s Commen¬ 
taries, i. 208-210; and Story’s Commentaries on the American Constitution , 
§§ 548-570. It deserves to be remarked that the Pennsylvania Constitution of 
1786, the Georgia Constitution of 1777, and the Vermont Constitutions of 1786 
and 1793, all of which constituted one house of legislature only, provided for a 
second body called the Executive Council, which in Georgia had the duty of 
examining bills sent to it by the House of Assembly, and of remonstrating 
against any provisions they disapproved, and in Vermont was empowered to 
submit to the Assembly amendments to bills sent up to them by the latter, 
and in case the Assembly did not accept such amendments, to suspend the 
passing of the bill till the next session of the legislature. In 1789, Georgia 
abolished her Council, and divided her legislature into two houses ; Pennsyl¬ 
vania did the same in 1790 ; Vermont in 1836. Both Pennsylvania and Vermont 
had also a body called the Council of Censors, who may be compared with the 
Nomothetae of Athens, elected every seven years, and charged with the duty 
of examining the laws of the State and their execution, and of suggesting amend¬ 
ments. This body was abolished in Pennsylvania in 1790, but lasted on in 
Vermont till 1870. All these experiments well deserve the study of constitu¬ 
tional historians. 



chap, xl STATE GOVERNMENTS : THE LEGISLATURE 485 


semper , quod ubique, quod ab omnibus of American constitutional 
doctrine. 1 

Both houses are chosen by popular vote, generally 2 in equal 
electoral districts, and by the same voters, although in a few 
States there are minor variations as to modes of choice. 3 Illi¬ 
nois by her Constitution of 1870 created a system of propor¬ 
tional representation by means of the cumulative vote; i.e. 
the elector may cast as many votes for any one candidate as 
there are representatives to be elected in the district, or may 
distribute his votes among the candidates. The plan was 
suggested to the people of Illinois, by the fact that the northern 
counties (called Canaan) had usually had a Republican, the 
southern (called Egypt) a Democratic, majority, so that there 
were special reasons for breaking the party solidity of each 
section. So far as I have been able to gather, experience has 
not commended the scheme, and it has not improved the qual¬ 
ity of the legislature. 


1 It ought to be noted as an illustration of the divergences between coun¬ 
tries both highly democratic that in the cantons of Switzerland the legislatures 
consist of one chamber only. In these cantons there is, to be sure, a referendum 
and generally a small executive council. Another remarkable divergence is 
that whereas in America, and especially in the West, the tendency is towards 
“rotation” in office, in Switzerland an official and a member of a legislature 
is usually continued in his post from one term to another, in fact is seldom 
displaced except for some positive fault. At one time officials were steadily 
re-elected in Connecticut. 

2 In Connecticut, by a provision of a constitutional amendment adopted in 
1874, every town which then contained, or should thereafter contain, a popula¬ 
tion of 5000, returns two members to the Assembly, and every other town retains 
the representation it had in that year. The Senate, however, is elected on a 
population basis. A great many small places have each two members. The 
State is virtually governed by the representatives of “rotten boroughs,” and 
as they form the majority, they have hitherto refused to submit to the people 
a constitutional amendment for a redistribution of seats in the Assembly, on 
the basis of equal population. Some troubles that occurred in the State were 
partly due to this excessive difficulty in reforming an antiquated Constitution. 
In some States there has been audacious gerrymandering. The Supreme 
court of Wisconsin once declared inconsistent with the Constitution a redistrict¬ 
ing of the State which had neglected county boundaries and created very un¬ 
equal districts. 

3 For instance, in Rhode Island every town or city, be it great or small, 
returns one senator ; and thus it at one time befell that a population of 253,000 
in 13 cities and towns had 13 senators, while 23 towns with 20,000 people sent 
23 senators. In the House of 77 members each city or town had at least one 
member, and the city of Providence, with a population nearly half that of the 
State, only 12. An amendment to increase the House to 100 members and to 
give Providence 25 was carried in 1909. In Illinois, every district returns one 
senator and three representatives. 




486 


THE STATE GOVERNMENTS 


PART II 


The following differences between the rules governing the 
two Houses are general: — 

1. The senatorial electoral districts are always larger, usually 
twice or thrice as large as the House districts, and the number 
of senators is, of course, in the same proportion smaller than 
that of representatives. 

2. A senator is usually chosen for a longer term than a repre¬ 
sentative. In twenty-nine States he sits for four years, in 
one (New Jersey) for three, in thirteen for two, in two (Massa¬ 
chusetts and Rhode Island) for one year only; the usual term 
of a representative being two years. 

3. In most cases the Senate, instead of being elected all at 
once like the House, is only partially renewed, half its members 
going out when their two, or four, years have been completed, 
and a new half coming in. This gives it a sense of continuity 
which the House wants. 

4. In some States the age at which a man is eligible for the 
Senate is fixed higher than that for the House of Representa¬ 
tives. 1 Other restrictions on eligibility, such as the exclusion 
of clergymen (which still exists in a few States, and is of old 
standing), that of salaried public officials (which exists every¬ 
where), that of United States officials and members of Congress, 
and that of persons not resident in the electoral district (fre¬ 
quent by law and practically universal by custom), apply to both 
Houses. In some States this last restriction goes so far that 
a member ceasing to reside in the district for which he was 
elected loses his seat ipso facto. 

I have dwelt in an earlier chapter (Chap. XIV.) on the 
strength of this local feeling as regards congressional elections, 
and on the results, to a European eye unfortunate, which 
it produces. It is certainly no weaker in State elections. 
Nobody dreams of offering himself as a candidate for a place 
in which he does not reside, even in new States, where it might 
be thought that there had not been time for local feeling to 
spring up. Hence the educated and leisured residents of the 
greater cities have no chance of entering the State legislature 
except for the city district wherein they dwell; and as these 
city districts are those most likely to be in the hands of some 
noxious and selfish ring of professional politicians, the prospect 

1 In some States a senator must have attained thirty years of age, in some 
a representative must have attained twenty-five. 



chap, xl STATE GOVERNMENTS : THE LEGISLATURE 487 


for such an aspirant is a dark one. Nothing more contributes 
to make reform difficult than the inveterate habit of choosing 
residents only as members. Suppose an able and public- 
spirited man desiring to enter the Assembly or the Senate of 
his State and shame the offenders who are degrading or plun¬ 
dering it. He may be wholly unable to find a seat, because in 
his place of residence the party opposed to his own may hold 
a permanent majority, and he will not be even considered else¬ 
where. Suppose a group of earnest men who, knowing how 
little one man can effect, desire to enter the legislature at the 
same time and work together. Such a group can hardly arise 
except in or near a great city. It cannot effect an entrance, 
because the city has at best very few seats to be seized, and 
the city men cannot offer themselves in any other part of the 
State. That the restriction often rests on custom, not on law, 
makes the case more serious. A law can be repealed, but cus¬ 
tom has to be unlearned; the one may be done in a moment 
of happy impulse, the other needs the teaching of long experi¬ 
ence applied to receptive minds. 

The fact is, that the Americans have ignored in all their 
legislative as in many of their administrative arrangements, 
the differences of capacity between man and man. They 
underrate the difficulties of government and overrate the ca¬ 
pacities of the man of common sense. Great are the bless¬ 
ings of equality; but what follies are committed in its name! 

The unfortunate results of this local sentiment have been 
aggravated by the tendency to narrow the election areas, allot¬ 
ting one senator or representative to each district. Under the 
older Constitution of Connecticut, for instance, the twelve 
senators were elected out of the whole State by a popular 
vote. Now the thirty-five senators are chosen by districts, 
and the Senate is to-day an inferior body, because then the 
best men of the whole State might be chosen, now it is possible 
only to get the leading men of the districts. In Massachusetts, 
under the Constitution of 1780, the senators were chosen by 
districts, but a district might return as many as six senators : 
the Assembly men were chosen by towns, 1 each corporate town 


1 A town or township means in New England, and indeed generally in the 
United States, a rural area, as opposed to a city. It is a community which has 
not received representative municipal government.—See Chapter XLVIII. 
post. 



488 


THE STATE GOVERNMENTS 


PART II 


having at least one representative, and more in proportion to 
its population, the proportion being at the rate of one additional 
member for every 275 ratable polls. In 1836 the scale of popu¬ 
lation to representatives was raised, and a plan prescribed (too 
complicated to be here set forth) under which towns below the 
population entitling them to one representative, should have 
a representative during a certain number of years out of every 
ten years, the census being taken decennially. Thus a small 
town might send a member to the Assembly for five years out 
of every ten, choosing alternate years, or the first five, or the 
last five, as it pleased. Now, however (Arndts, of a.d. 1857), 
the State has been divided into forty Senatorial districts, each 
of which returns one senator only, and in 175 Assembly districts, 
returning one, two, or, in a few cases, three representatives each. 
The composition of the legislature has declined ever since this 
change was made. The area of choice being smaller, inferior men 
are chosen ; and in the case of the Assembly districts which re¬ 
turn one member, but are composed of several small towns, the 
practice has grown up of giving each town its turn, so that not 
even the leading man of the district, but the leading man of 
the particular small community whose turn has come round, 
is chosen to sit in the assembly. 

Universal manhood suffrage, subject to certain disqualifica¬ 
tions for crime (including bribery and polygamy) and the 
receipt of poor law relief, which prevail in many States — in 
nine States no pauper can vote — is the rule in nearly all the 
States. Ten States (Wyoming, Utah, Idaho, Colorado, Wash¬ 
ington, Kansas, Arizona, California, Oregon, and Illinois) give 
the suffrage to women. A property qualification was formerly 
required in many, and lasted till 1888 in Rhode Island, where 
the possession of real estate valued at $134, or the payment of a 
tax of at least $1 was required from all citizens not natives of the 
United States. 1 Ten other States require the voter to have paid 
some State or county tax (some call it a poll tax); but if he does 
not pay it, his party usually pay it for him, so the restriction is of 
little practical importance. Massachusetts also requires that he 
shall be able to read the State Constitution in English, and to 
write his name (Arndt, of 1857); Connecticut, that he shall be 

1 Rhode Island, however, retains a qualification for the purposes of voting 
for members of City Councils. A good many constitutions forbid the imposi¬ 
tion of any property qualification. 



chap, xl STATE GOVERNMENTS: THE LEGISLATURE 489 


able to read any section of the Constitution or of the statutes, 
and shall sustain a good moral character (Arndts, of 1855 and 
1845). This educational test is of no great consequence, partly, 
no doubt, because illiteracy is not high in either State ; and the 
ballot laws have reduced the need for it. In Massachusetts it is 
now enforced, but for a while the party managers on both sides 
agreed not to trouble voters about it. Mississippi prescribes 
that the person applying to be registered “shall be able to read 
any section of the Constitution or be able to understand the 
same when read to him, or give a reasonable interpretation 
thereof” (Const, of 1890). 1 Certain terms of residence within 
the United States, in the particular State, and in the voting dis¬ 
tricts, are also required: these vary greatly from State to 
State, but are usually short. 

The suffrage is generally the same for other purposes as for 
that of elections to the legislature, and is in most States con¬ 
fined to male inhabitants. In many States women are permitted 
to vote at school district elections and on matters affecting 
libraries: and some confer a direct popular vote or referendum 
on women taxpayers where a question is submitted to the 
people. Nowhere is any disability imposed upon married 
women as such; nor has it been attempted, in the various con¬ 
stitutional amendments framed to give political suffrage to 
women, accepted in some States, and rejected by the people in 
others, to draw such a distinction, which would indeed be ab¬ 
horrent to the genius of American law. 

It is important to remember that, by the Constitution of the 
United States, the right of suffrage in Federal or national elec¬ 
tions (' i.e . for presidential electors and members of Congress) 
is in each State that which the State confers on those who vote 


1 The “reasonable interpretation” of this remarkable provision seems to be 
that it is intended to furnish a peaceful method of excluding more or less illit¬ 
erate negroes and including illiterate whites : a result which has been in fact 
attained, and which, though it may appear at variance with the spirit of the 
fifteenth amendment to the Federal Constitution, is under the circumstances 
of Mississippi possibly not the worst solution of a difficult problem. As to the 
provisions of recent Southern Constitutions affecting the voting of negroes, see 
Chaps. XCIII. and XCIV. post. 

The Constitution of Colorado, 1876, allowed the legislature to prescribe an 
educational qualification for electors, no such law to take effect prior to a.d. 
1890. Florida by its Constitution of 1868 directed its legislature to prescribe 
such qualifications, which, however, were not to apply till after 1880, nor to 
any person who might then be already a voter. (In the Constitution of 1886 
I find no such provision.) 



490 


THE STATE GOVERNMENTS 


PART II 


at the election of its more numerous House. That the differ¬ 
ences which might exist between one State and another in the 
width of the Federal franchise thus granted, are at present (ex¬ 
cept in the South) insignificant is due, chiefly to the prevalence 
of democratic theories of equality over the whole Union, partly 
perhaps also to the provision of the fourteenth amendment to 
the Federal Constitution, which provides that the representation 
of a State in the Federal House of Representatives, and 
therewith also its weight in a presidential election, may be re¬ 
duced in proportion to the number of adult male citizens dis¬ 
qualified in that State. As a State desires to have its full 
weight in national politics, it has had a motive for the widest 
possible enlargement of its Federal franchise, and this implies 
a corresponding width in its domestic franchise. 

The number of members of the legislature varies greatly from 
State to State. Delaware, with seventeen senators, has the 
smallest Senate, Minnesota, with sixty-three, the largest. Dela¬ 
ware has also the smallest House of Representatives, con¬ 
sisting of thirty-five members; while New Hampshire, a very 
small State, has the largest with 389. The New York houses 
number 51 and 150 respectively, those of Pennsylvania 50 and 
201, those of Massachusetts 40 and 240. In the Western and 
Southern States the number of representatives rarely exceeds 
120. 1 

As there is a reason for everything in the world, if one could 
but find it out, so for this difference between the old New 
England States and those newer States which in many other 
points have followed their precedents. In the New England 
States local feeling was and is intensely strong, and every little 
town wanted to have its member. In the West and South, 
local divisions have had less natural life; in fact, they are 
artificial divisions rather than genuine communities that arose 
spontaneously. Hence the same reason did not exist in the 
West and South for having a large Assembly; while the dis¬ 
trust of representatives, the desire to have as few of them as 
possible and pay them as little as possible, have been specially 
strong motives in the West and South, as also in New York 
and Pennsylvania, and have caused a restriction of numbers. 

1 North Dakota, however, provides that its Senate may have as many as 
50, its House as many as 140, members. 

There are about seven thousand State legislators in all in the United States. 



chap, xl STATE GOVERNMENTS: THE LEGISLATURE 491 


In all States the members of both Houses receive the same 
salary. In some cases it is fixed at an annual sum of from 
$150 (Maine) to $1500 (New York), the average being $500. 
More frequently, however, it is calculated at so much for 
every day during which the session lasts, varying from $1 (in 
Rhode Island) to $8 (in California and Nevada) per day ($5 
seems to be the average), besides a small allowance, called mile¬ 
age, for travelling expenses. These sums, although unremunera- 
tive to a man who leaves a thriving business to attend in the 
State capital, are an object of such desire to many of the repre¬ 
sentatives of the people, that the latter have thought it prudent 
to restrict the length of the legislative sessions, which now 
generally stand limited to a fixed number of days, varying from 
forty days in Georgia, Nebraska, and Oregon, to 150 days in 
Pennsylvania. The States which pay by the day are also those 
which limit the session. Some States secure themselves against 
prolonged sessions by providing that the daily pay shall di¬ 
minish, or shall absolutely cease and determine, at the expiry of 
a certain number of days, hoping thereby to expedite business 
and check inordinate zeal for legislation. 1 

It was formerly usual for the legislature to meet annually, 
but the experience of bad legislation and over legislation has 
led to fewer as well as shorter sittings; and sessions are now 
biennial in all States except two (Alabama and Mississippi) 2 
where they are quadrennial, and in the six following : — Massa¬ 
chusetts, Rhode Island, New York, New Jersey, South Caro¬ 
lina, Georgia, all of them old States. In these last the sessions 
are annual, save in that odd little nook Rhode Island, which 
still convokes her legislature every May at Newport, and after¬ 
wards holds an adjourned session at Providence, the other chief 
city of the commonwealth. There is, however, in nearly all 
States a power reserved to the governor to summon the Houses 
in extraordinary session should a pressing occasion arise, but the 
provisions for daily pay do not usually apply to these extra 
sessions. 3 

1 These limitations on payment are sometimes, where statutory, repealed for 
the occasion. In the Swiss Federal Assembly a member receives pay (16s. 
per diem) only for those days on which he answers to his name on the roll call. 

2 Mississippi provides for a short special session for financial bills halfway 
through the term. 

3 Some of the biennially-meeting legislatures are apt to hold adjourned 
sessions in the off years. 



492 


THE STATE GOVERNMENTS 


PART II 


Bills may originate in either House, save that in most States 
money bills must originate in the House of Representatives, 
a rule for which, in the present condition of things, when both 
Houses are equally directly representative of the people and 
chosen by the same electors, no sufficient ground appears. It 
is a curious instance of the wish which animated the framers of 
the first Constitutions of the original thirteen States to reproduce 
those details of the English Constitution which had been deemed 
bulwarks of liberty. The newer States borrowed it from their 
elder sisters, and the existence of a similar provision in the 
Federal Constitution has helped to perpetuate it in all the 
States. But there is a reason for it in Congress, the Federal 
Senate not being directly representative of equal numbers of 
citizens, which is not found in the State legislatures : it is in 
these last a mere survival of no present functional value. Money 
bills may, however, be amended or rejected by the State Sen¬ 
ates like any other bills, just as the Federal Senate amends 
money bills brought up from the House. 

In one point a State Senate enjoys a special power, obviously 
modelled on that of the English House of Lords and the Federal 
Senate. It sits as a court under oath for the trial of State 
officials impeached by the House. 1 Like the Federal Senate, 
it has in many States the power of confirming or rejecting ap¬ 
pointments to office made by the governor. When it considers 
these it is said to “go into executive session.” The power is 
an important one in those States which allow the governor to 
nominate the higher judges. In other respects the powers and 
procedure of the two Houses of a State legislature are identical; 2 
except that, whereas the lieutenant-governor of a State is generally 
ex officio president of the Senate, with a casting vote therein, 
the House always chooses its own Speaker. The legal quorum 
is usually fixed, by the Constitution, at a majority of the whole 
number of members elected, 3 though a smaller number may 

1 In New York impeachments are tried by the Senate and the judges of the 
Court of Appeals sitting together: in Nebraska by the judges of the Supreme 
court. 

2 Here and there one finds slight differences, as, for instance, in Vermont the 
power decennially to propose amendments to the Constitution belongs to the 
Senate, though the concurrence of the House is needed. However, I do not 
attempt in this summary to give every detail of every Constitution, but only a 
fair general account of what commonly prevails, and is of most interest to the 
student of comparative politics. 

3 Four constitutions fix the quorum at two-thirds, and two specify a number. 



chap, xl STATE GOVERNMENTS : THE LEGISLATURE 493 


adjourn and compel the attendance of absent members. Both 
Houses do most of their work by committees, much after the 
fashion of Congress, 1 and the committees are in both usually 
chosen by the Speaker (in the Senate by the President of that 
body), though it is often provided that the House (or Senate) 
may on motion vary their composition. 2 Both Houses sit with 
open doors, but in most States the Constitution empowers them 
to exclude strangers when the business requires secrecy. 

The State governor has of course no right to dissolve the 
legislature, nor even to adjourn it unless the Houses, while 
agreeing to adjourn, disagree as to the date. Such control as 
the legislature can exercise over the State officers by way of 
inquiry into their conduct is generally exercised by commit¬ 
tees, and it is in committees that the form of bills is usually 
settled and their fate decided, just as in the Federal Congress, 
the lobby having of course a great and usually a pernicious 
influence. The proceedings are rarely reported. Sometimes 
when a committee takes evidence on an important question re¬ 
porters are present, and the proceedings more resemble a public 
meeting than a legislative session. In some States when a 
bill is referred to a Committee any citizen of the State may 
appear and give evidence for or against it, so that ample security 
is taken for the ascertainment of public sentiment and for 
enabling all private interests affected to state their case. This 
liberty is largely used in Massachusetts, and with excellent results. 
It need scarcely be added that neither House separately, nor 
both Houses acting together, can control an executive officer 
otherwise than either by passing a statute prescribing a certain 
course of action for him, which if it be in excess of their powers 
will be held unconstitutional and void, or by withholding the 
appropriations necessary to enable him to carry out the course 
of action he proposes to adopt. The latter method, where ap¬ 
plicable, is the more effective, because it can be used by a bare 
majority of either House, whereas a bill passed by both Houses 

1 See, as to the committees of Congress, Chapter XV. ante. Many constitu¬ 
tions provide that no bill shall pass unless it has been previously referred to 
and considered by a committee. 

2 In Massachusetts there were in 1912 five standing committees of the Senate, 
seven of the House, and thirty joint standing committees of both Houses. 
In North Dakota there were in 1891 thirty-three standing committees of the 
Senate, thirty-nine of the House, and six joint standing committees of House 
and Senate. In New York there were in 1913 twenty-five standing committees 
of the Senate, thirty-one of the Assembly. 



494 


THE STATE GOVERNMENTS 


PART II 


may be vetoed by the governor, a point so important as to need 
a few words. 

One State only, North Carolina, still vests legislative author¬ 
ity in the legislature alone. All the rest now require a bill to 
be submitted to the governor, and permit him to return it to 
the legislature with his objections. If he so returns it, it can 
only be again passed “over the veto” by something more than 
a bare majority. So to pass a bill over the veto there is 
required — 

In one State (Connecticut) a majority in each House. 

In eight States a majority in each House of all the members 
elected to that House. 

In three States a majority of three-fifths in each House of all 
the members elected. 

In eight States a majority of two-thirds in each House of 
all the members present. 

In twenty-seven States a majority of two-thirds of all the 
members elected. 

In one State (Massachusetts) two-thirds of the elected mem¬ 
bers of the House in which the bill originated, and two- 
thirds of the members present in the other House. 

In one State (Virginia) two-thirds of the members present 
and a majority of those elected in each House. 

Here, therefore, as in the Federal Constitution, we find a 
useful safeguard against the unwisdom or misconduct of a leg¬ 
islature, and a method provided for escaping, in extreme cases, 
from those deadlocks which the system of checks and balances 
tends to occasion. 

I have adverted in a preceding chapter to the restrictions 
imposed on the legislatures of the States by their respective 
Constitutions. These restrictions, which are numerous, elabo¬ 
rate, and instructive, take two forms. 

I. Exclusions of a subject from legislative competence, i.e. 
prohibitions to the legislature to pass any law on certain enu¬ 
merated subjects. The most important classes of prohibited 
statutes are — 

Statutes inconsistent with democratic principles, as, for 
example, granting titles of nobility, favouring one reli- 



chap, xl STATE GOVERNMENTS : THE LEGISLATURE 495 


gious denomination, creating a property qualification for 
suffrage or office. 

Statutes against public policy, e.g. tolerating lotteries, im¬ 
pairing the obligation of contracts, incorporating or per¬ 
mitting the incorporation of banks, or the holding by a 
State of bank stock. 1 

Statutes special or local in their application, a very large 
and increasing category, the fulness and minuteness of 
which in many Constitutions show that the mischiefs 
arising from improvident or corrupt special legislation, 
must have become alarming. The lists of prohibited sub¬ 
jects in the Constitutions of Missouri of 1875, Montana 
and North Dakota of 1889, Mississippi of 1890, and Okla¬ 
homa, 1907, are the most complete I have found. 2 Okla¬ 
homa enumerates twenty-eight topics, special legislation 
on which is forbidden. 

Statutes increasing the State debt beyond a certain limited 
amount, or permitting a local authority to increase its debt 
beyond a prescribed amount, the amount being usually 
fixed in proportion to the valuation of taxable property 
within the area administered by the local authority. 3 

II. Restrictions on the procedure of the legislature, i.e. 
directions as to the particular forms to be observed and times 
to be allowed in passing bills, sometimes all bills, sometimes 
bills of a certain specified nature. Among these restrictions 
will be found provisions — 

As to the majorities necessary to pass certain bills, especially 
appropriation bills. Sometimes a majority of the whole 
number of members elected to each House is required, or 
a majority exceeding a bare majority of those present. 

As to the method of taking the votes, e.g. by calling over the 
roll and recording the vote of each member. 

1 See, for instance, Constitution of Texas of 1876. 

2 Similar lists occur in the constitutions of all the Western and Southern 
States as well as of some Eastern States {e.g. Pennsylvania and New York). 
Among them the prohibitions to grant divorces and to authorize the adoption 
or legitimation of children are frequent. 

3 See also Chapter XLIII. on State Finance. The local authorities had been 
usually forbidden by statute to borrow or tax beyond a certain amount, but 
as they had formed the habit of obtaining dispensations from the State legis¬ 
latures, the check mentioned in the text has been imposed on the latter. 



496 


THE STATE GOVERNMENTS 


PART II 


As to allowing certain intervals to elapse between each read¬ 
ing of a measure, and for preventing the hurried passage 
of bills, especially appropriation bills, at the end of the 
session. 

As to reading of bills publicly and at full length. 

As to sending all bills to a committee, and prescribing the 
mode of its action. 

Against secret sessions (Idaho). 

As to preventing an act from taking effect until a certain 
time e.g. ninety days after the adjournment of the session. 

Against changing the purpose of a bill during its passage. 

As to including in a bill only one subject, and expressing 
that subject in the title of the bill. 

Against re-enacting, or amending, or incorporating, any 
former act by reference to its title merely, without setting 
out its contents. 1 

The last two classes of provisions might be found whole¬ 
some in England, where much of the difficulty complained of 
by the judges in construing the law arises from the modern 
habit of incorporating parts of former statutes, and dealing 
with them by reference. 2 

Where statutes have been passed by a legislature upon a 
prohibited subject, or where the prescribed forms have been 
transgressed or omitted, the statute will be held void so far as 
inconsistent with the Constitution. 

Even these multiform restrictions on the State legislatures 
have not been found sufficient. Bitted and bridled as they are 
by the Constitutions, they contrive, as will appear in a later 
chapter, to do plenty of mischief in the direction of private or 
special legislation. 

Although State legislatures have of course no concern what¬ 
ever with foreign affairs, this is not deemed a reason for abstain- 

1 Idaho, Indiana, and Oregon direct every Act to be plainly worded, avoiding 
as far as possible technical terms, and Louisiana (Constitution of 1898, § 31) 
says : “The General Assembly shall never adopt any system or code of laws by 
general reference to such system or code of laws, but in all cases shall recite at 
length the several provisions of the laws it may enact.” 

2 Not to add that the inclusion in one statute of wholly different matters 
may operate harshly on persons who have failed to note the minor contents 
of a bill whose principal purpose does not affect them. The commoners of the 
New Forest in Hampshire were once surprised to awake one morning and find 
that the Crown had smuggled through Parliament, in an Act relating to fore¬ 
shores in Scotland, a clause seriously prejudicial to their interests. 




chap, xl STATE GOVERNMENTS : THE LEGISLATURE 497 


ing from passing resolutions on that subject. The passion for 
what is called “resoluting” is strong everywhere in America, 
and an expression of sympathy with an oppressed foreign 
nationality, or of displeasure at any unfriendly behaviour of 
a foreign power, is not only an obvious way of relieving the 
feelings of the legislators, but often an electioneering device, 
which appeals to some section of the State voters. Accordingly 
such resolutions used to be common, and are, though of course 
quite irregular, quite innocuous. 

Debates in these bodies are seldom well reported, and some¬ 
times not reported at all. One result is that the conduct of 
members escapes the scrutiny of their constituents; a better 
one that speeches are generally short and practical, the motive 
for rhetorical displays being absent. If a man does not make 
a reputation for oratory, he may for quick good sense and busi¬ 
ness habits. However, so much of the real work is done in 
committees that talent for intrigue or “management” usually 
counts for more than debating power. 



CHAPTER XLI 


THE STATE EXECUTIVE 

The executive department in a State consists of a governor 
(in all the States), a lieutenant-governor (in thirty-five), and of 
various minor officials. The governor, who, under the earlier 
Constitutions of most of the original thirteen States, was chosen 
by the legislature, is now always elected by the people, and 
by the same suffrage, practically universal, as the legislature. 
He is elected directly, not, as under the Federal Constitution, 
by a college of electors. His term of office is, in twenty-three 
States, four years; in one State (New Jersey), three years; in 
twenty-two States, two years; and in two States (Massachusetts 
and Rhode Island), one year. His salary varies from $12,000 in 
New York and Pennsylvania to $2500 in Vermont and one 
other State. Some States limit his re-eligibility; but in those 
which do not there exists no tradition forbidding a third term of 
office similar to that which prevails in the Federal Government. 

The earlier Constitutions of the original States (except South 
Carolina) associated with the governor an executive council 1 
(called in Delaware the Privy Council), but these councils 
have long since disappeared, except in Massachusetts, Maine, 
and North Carolina, and the governor remains in solitary glory 
the official head and representative of the majesty of the State. 
His powers in the latter decades of the last century had come 

1 Another illustration of the tendency to reproduce England. Vermont was 
still under the influence of colonial precedents when it framed its Constitutions 
of 1786 and 1793. Maine was influenced by Massachusetts. None of the newer 
Western States has ever tried the experiment of such a council. 

New York had originally two Councils, a “ Council of Appointment,” con¬ 
sisting of the Governor and a Senator from each of the (originally four) dis¬ 
tricts, and a “ Council of Revision,” consisting of the Governor, the Chancellor, 
and the judges of the Supreme court, and possessing a veto on statutes. The 
Governor has now, since the extinction of these two councils, obtained some of 
the patronage which belonged to the former as well as the veto which belonged 
to the latter. 


498 


CHAP. XLI 


THE STATE EXECUTIVE 


499 


to be more specious than solid, but in the present century they 
have begun to revive. One, that of veto, is recognized as of 
great practical value. He is charged with the duty of seeing 
that the laws of the State are faithfully administered by all 
officials and the judgments of the courts carried out. He has, 
in nearly all States, the power of reprieving and pardoning 
offenders, but in some this does not extend to treason or to con¬ 
viction on impeachment (in Vermont he cannot pardon for 
murder), and in some, other authorities are associated with 
him in the exercise of this prerogative. Some recent Consti¬ 
tutions impose restrictions which witness to a distrust of his 
action; nor can it be denied that the power has sometimes 
been used to release offenders ( e.g . against the election laws) 
who deserved no sympathy. The governor is also comman- 
der-in-chief of the armed forces of the State, can embody the 
militia, repel invasion, suppress insurrection. The militia are 
now important chiefly as the force which may be used to sup¬ 
press riots, latterly not unfrequent in connection with labour 
disputes. Massachusetts has also created a small State police 
force (called the District Police), placing it at the disposal of 
the governor for the maintenance of order, wherever disturbed, 
and for the enforcement of various administrative regulations. 
Pennsylvania, having frequently suffered from strikes accom¬ 
panied by violence in the mining regions, has also a State police. 
Michigan has (and Massachusetts and Rhode Island formerly 
had) a State police for the enforcement of their anti-liquor legis¬ 
lation, and New York State has one for supervising elections in 
New York City. Delaware has two State detectives. 

He appoints some few officials, but seldom to high posts, 
and in many States his nominations require the approval of 
the State Senate. Patronage, in which the President of the 
United States finds one of his most desired and most disagree¬ 
able functions, is in the case of a State governor of slight value, 
because the State offices are not numerous, and the more impor¬ 
tant and lucrative ones are filled by the direct election of the peo¬ 
ple. Nevertheless there has lately appeared a tendency to 
commit to him, as a person who can be held responsible, the selec¬ 
tion of capable men for some of the posts recently created. 
He has the right of requiring information from the other execu¬ 
tive officials, and is usually bound to communicate to the legis¬ 
lature his views regarding the condition of the commonwealth. 



500 


THE STATE GOVERNMENTS 


PART n 


He may also recommend measures, but is not expected to 
frame and present bills, though he may practically do this by hav¬ 
ing a measure introduced which embodies his recommendations. 
In a few States he is directed to present estimates. He has in all 
the States but one (North Carolina) a veto upon bills passed 
by the legislature. 1 This veto may be overridden in manner 
already indicated (see last preceding chapter), but generally 
kills the measure, because if the bill is a bad one, it calls the 
attention of the people to the fact and frightens the legislature, 
whereas if the bill be an unobjectionable one, the governor’s 
motive for vetoing it is probably a party motive, and the requisite 
overriding majority can seldom be secured in favour of a bill 
which either party dislikes. The use of his veto is, in ordinary 
times, a governor’s most serious duty, and chiefly by his discharge 
of it is he judged. 

Although less sought after and prized than in “the days 
of the Fathers,” when a State governor sometimes refused 
to yield precedence to the President of the United States, the 
governorship is still, particularly in New England, and the 
greater States, a post of some dignity, and affords an oppor¬ 
tunity for the display of character and talents. It was in his 
governorship of New York that Mr. Cleveland, for instance, 
commended himself to his party, and rose to be President of 
the United States. Similarly Mr. Hayes was put forward for 
the Presidency in 1876 because he had been a good governor of 
Ohio. During the Civil War, when each governor was respon¬ 
sible for enrolling, equipping, officering, and sending forward 
troops from his State, 2 and when it rested with him to repress 
attempts at disorder, much depended on his energy, popularity, 
and loyalty. In some States men still talk of the “war gov¬ 
ernors” of those days as heroes to whom the North owed deep 
gratitude. And since the Pennsylvanian riots of 1877 and those 
which have subsequently occurred in Cincinnati and Chicago 

1 It deserves to be remarked that neither the Constitution of the Swiss Con¬ 
federation nor any cantonal constitution vests a veto in any officer. Switzer¬ 
land seems in this respect more democratic than the American States, while in 
the amount of authority which the Swiss allow to the executive government 
over the citizen (as witness the case of the Salvation Army troubles in Canton 
Bern) they are less democratic. 

2 Commissions to officers up to the rank of colonel inclusive were usually 
issued by the governor of the State : the regiment, in fact, was a State product, 
though the regular Federal ^rmy is of course raised and managed by the Federal 
Government directly, 




CHAP. XLI 


THE STATE EXECUTIVE 


501 


have shown that tumults may suddenly grow to serious propor¬ 
tions, it has in many States become important to have a man 
of prompt decision and fearlessness in the office which issues 
orders to the State militia . 1 

The decline already noted in the respect and confidence felt 
for and in the legislatures has latterly, in some States, tended 
to attach more influence to the office of Governor, and has opened 
to a strong and upright man, the opportunity of making it a 
post of effective leadership. The people are coming to look 
upon the head of their commonwealth as the person responsible 
for giving them a firm and honest administration. When they 
are convinced of his rectitude, they regard him as the represent¬ 
ative of their own best will and purpose, and have in some 
instances shown that they are prepared to support him against 
the legislature, and to require the latter to take the path he 
has pointed out. 

The elective Lieutenant-Governor who, in most States, steps 
into the governor’s place if it becomes vacant, is usually also 
ex officio President of the Senate , 2 as the Vice-President of the 
United States is of the Federal Senate. Otherwise he is an 
insignificant personage, though sometimes a member of some 
of the executive boards . 3 

1 This is the place for noticing a remarkable novelty in the relations of the 
States and their respective executive heads to the Nation and its head. In 
1908 the President of the United States invited the Governors of all the States 
to meet him and some persons of exceptional knowledge and experience in a 
conference at Washington for the purpose of considering a matter of high public 
consequence, namely the best method of conserving and turning to full account 
the natural resources of the country, such as forests, mines, and water power. 
The object was to enlist the interest of the States in the adoption of a national 
policy upon this great national matter, and if possible to induce them to legis¬ 
late each for itself in accordance with some general principles which might also 
be recognized and carried out by the National Government in its own sphere. 
The Conference met in the winter of 1908 and again early in 1909. Not only 
did its deliberations command much attention from the people, but the scheme 
of bringing the States through their Governors into council with the National 
administration in a way not provided for by, but in no wise inconsistent with the 
Federal Constitution, appeared to set a precedent capable of being used there¬ 
after, as a means of arousing public opinion and concentrating it upon some 
common aim, which it might be found difficult to attain through the action 
of Congress. In 1910 arrangements were made for holding conferences of 
Governors at stated times in the future. 

2 In Rhode Island the governor presides over the Senate, an interesting 
survival of European arrangements. 

3 Where there is no lieutenant-governor, the President of the State Senate 
or the Secretary of State usually succeeds if the governor dies or becomes 
incapable of discharging his functions. 




502 


THE STATE GOVERNMENTS 


part ii 


The names and duties of the other officers vary from State 
to State. The most frequent are a secretary of state (in all 
States), a treasurer (in all), an attorney-general, a comptroller, 
an auditor, a superintendent of public instruction. Now and 
then we find a State engineer, a surveyor, a superintendent of 
prisons. Some States have also various boards of commission¬ 
ers, e.g. for railroads, for canals, for prisons, for the land office, 
for agriculture, for labour, for immigration, and (in a few States) 
for what are called “public utilities.” Many of these offi¬ 
cials are (in nearly all States) elected by the people at the 
general State\lection. Sometimes, however, they, or some of 
them, are either chosen by the legislature, or appointed by 
the governor, whose nomination usually requires the con¬ 
firmation of the Senate. Their salaries, which of course vary 
with the importance of the office and the parsimony of the 
State, seldom exceed $5000 per annum and are usually smaller. 
So, too, the length of the term of office varies. It is often 
the same as that of the governor, and never exceeds four 
years, except that in New Jersey, a conservative State, the 
secretary and attorney-general hold for five years; and in 
Tennessee the attorney-general, who, oddly enough, is ap¬ 
pointed by the supreme court of the State, holds for eight. 

It has already been observed that the State officials are in no 
sense a ministry or cabinet to the governor. Holding indepen¬ 
dently of him, and responsible neither to him nor to the legis¬ 
lature, but to the people, they do not take generally his orders, 
and need not regard his advice. 1 Each has his own department 


1 Florida, by her Constitution of 1868, Art. vi. 17, and Art. viii., created a 
“cabinet of administrative officers,” consisting of eight officials, appointed by 
the governor, with the consent of the Senate, to hold office for the same time 
as the governor, and “assist the governor in the performance of his duties.” 
However, in her Constitution of 1886 she simply provides that “the governor 
shall be assisted by administrative officers,” viz. secretary of state, attorney- 
general, comptroller, treasurer, superintendent of public instruction, and com¬ 
missioner of agriculture, all elected by the people at the same time with the 
governor and for the same term. The council of North Carolina (Const, of 
1868) consists of five officials, who are to “advise the governor in the execution 
of his duty,” but they are elected directly by the people. Their position may 
be compared with that of the Council of India under recent English statutes 
towards the Secretary of State for India. Massachusetts has always had an 
“executive council” consisting of eight persons chosen annually by the people 
in districts. They “advise the governor in the executive part of the govern¬ 
ment” and have the right of rejecting nominations to office made by him. 
Here too we find a survival, which might seem to do more harm than good, 
because it lessens the governor’s responsibility. However, a respected and 



CHAP. XLI 


THE STATE EXECUTIVE 


503 


to administer, and as there is little or nothing political in the 
work, a general agreement in policy, such as must exist between 
the Federal President and his ministers, is not required. Policy 
rests with the legislature, whose statutes, prescribing minutely 
the action to be taken by the officials, leave little room for 
executive discretion. Europeans may realize the nature of the 
system by imagining a municipal government in which 
the mayor, town clerk, health officer, and city architect are 
all chosen directly by the people, instead of by the common 
council, and in which each of these officials is, for most 
purposes, independent not only of the mayor, but also of 
the common council, except in so far as the latter has the right 
of granting money, and as it can act by general ordinances 
— that is to say, act as a legislative and not as an administra¬ 
tive body. 1 

To give a clearer idea of the staff of a State government I 
will take the great State of Ohio, and give the functions of the 
officials by whom it is administered. 

The executive officials of Ohio were in 1909 — 

A Governor, elected by the people for two years. His chief 
duties are to execute the laws, convene the legislature on 
extraordinary occasions, command the State forces, ap¬ 
point staff officers and aides-de-camp, grant pardons and 
reprieves, issue commissions to State and county officers, 
make a variety of appointments, serve on certain boards, 
and remove, with the assent of the Senate, any official ap¬ 
pointed by him and it. He is paid $10,000 a year. 

A Lieutenant-Governor, elected for two years, salary $1500 a 
year, with the duty of succeeding to the governor (in 
case of death or disability), and of presiding in the Senate. 

A Secretary of State, elected for two years (along with the 
governor), salary $6500 a year. His duties are to take 
charge of laws and documents of the State, gather and report 
statistics, distribute instructions to certain officers, and 

successful recent Governor told me that he found his Council helpful, as its 
members frequently took up and dealt with particular questions on which he 
consulted them. They became to him almost a sort of Cabinet of administra¬ 
tive heads. 

1 In the Swiss Confederation the Federal Council of Seven consists of persons 
belonging to different parties, who sometimes speak against one another in the 
chambers (where they have the right of speech), but this is not found to inter¬ 
fere with their harmonious working as an administrative body. 




504 


THE STATE GOVERNMENTS 


PART II 


act as secretary to certain boards, to serve on the State 
printing and State library boards, to make an abstract 
of the votes for candidates at presidential and State 
elections. 

A State Auditor , elected for four years, salary $6500. Duties 
— to keep accounts of all moneys in the State treasury, 
and of all appropriations and warrants, to give warrants 
for all payments from or into the treasury, to conduct 
financial communications with county authorities, and 
direct the attorney-general to prosecute revenue claims, 
to serve on various financial boards, and manage various 
kinds of financial business. 

A State Treasurer, elected for two years, salary $6500. Du¬ 
ties— to keep account of all drafts, paying the money 
into the treasury, and of auditor’s warrants for drafts 
from it, and generally to assist and check the auditor in 
the supervision and disbursement of State revenues, pub¬ 
lishing monthly statements of balances. 

A State Attorney-General, elected for two years, salary $6500 
a year. Duties — to appear for the State in civil and 
criminal cases, advise legally the Governor and other 
State officers and the Assembly, proceed against offenders, 
enforce performance of charitable trusts, submit statistics 
of crime, sit upon various boards. 

A State Commissioner of Common Schools, elected for two 
years, salary $4000 a year. Duties — to visit and advise 
teachers’ institutes, boards of education, and teachers, de¬ 
liver lectures on educational topics, see that educational 
funds are legally distributed, prepare and submit annual 
reports on conditions of schools, appoint State board of 
examiners of teachers. 

Three Members of Board of Public Works, elected for four 
years, salary $2900 a year. Duties — to manage and 
repair the public works (including canals) of the State, 
appoint and supervise minor officials, let contracts, 
present annual detailed report to the governor. 

A State Dairy and Food Commissioner, elected for two years, 
salary $4000, and travelling expenses. 

Besides these, the people of the State elect the judges and 
the clerk of the supreme court. Other officials are either 



CHAP. XLI 


THE STATE EXECUTIVE 


505 


elected by the people in districts, counties, or cities, or ap~ 
pointed by the governor or legislature. 

Of the subordinate civil service of a State there is little to 
be said. Though it is not large, for the sphere of administra¬ 
tive action which remains to the State between the Federal 
government on the one side, and the county, city, and town¬ 
ship governments on the other, is not wide, it increases daily, 
owing to the eagerness of the people (especially in the West) 
to have State aid rendered to farmers, to miners, to stock-keep¬ 
ers, and generally in the material development of the country. 
Much is now done in the way of collecting statistics and issu¬ 
ing reports. These administrative bureaux are not always 
well manned, for State legislatures are not duly alive to the 
necessity of securing high competence, and some of them do little, 
by salaries or otherwise, to induce able men to enter their ser¬ 
vice: while the so-called “Spoils System,” which has been 
hitherto applied to State no less than to Federal offices, too often 
makes places the reward for electioneering and wire-pulling. 
Efforts are moreover being made, and have in some States 
already been successful ( e.g . New York), to introduce reforms 
similar to those begun in the Federal administration, whereby 
certain walks of the civil service shall be kept out of politics, 
at least so far as to secure competent men against dismissal on 
party grounds. Such reforms would in no case apply to the 
higher officials chosen by the people, for they are always elected 
for short terms and on party lines. In New York, however, 
recent legislation has created efficient administrative boards 
with suitable authority, such as the Public Service Commission, 
which has jurisdiction over railroads and over corporations 
providing gas, electric light and power, telegraph and telephone 
service. 

Every State provides for the impeachment of executive 
officers for grave offences. 1 The State House of Representatives 
is the impeaching body, except in Nebraska, where the impeach¬ 
ment is made by joint resolution of both Houses; and in all 
but Nebraska the State Senate sits as the tribunal, a two- 
thirds majority being generally required for a conviction. Im¬ 
peachments are rare in practice. 

1 Oregon was long an exception : but now she too permits impeachment» 
and used it in 1909 against two officials, one of whom resigned rather than face 
the trial, while the other escaped because the majority for conviction fell short 
of two-thirds. 



506 


THE STATE GOVERNMENTS 


PART II 


There has also been in many States a power of removing 
officials, sometimes by the vote of the legislature, sometimes by 
the governor on the address of both houses, or by the governor 
either alone, or with the concurrence of the Senate. Such 
removals must of course be made in respect of some offence, 
or for some other sufficient cause, not from caprice or party 
motives; and when the case does not seem to justify imme¬ 
diate removal, the governor is frequently empowered to sus¬ 
pend the officer, pending an investigation of his conduct. 

A more promptly effective method of dealing with officials 
to whom objection is taken has been recently introduced in 
some States. This is the Recall. A prescribed number of voting 
citizens may demand that a vote shall be taken on the question 
whether a certain official shall or shall not continue in office 
for the rest of his term. If such a popular vote when taken 
shows a majority against the official, he is thereby dismissed. 

Up to the end of 1913 seven states had adopted this plan. 
They were Oregon, California, Arizona, Colorado, Nevada, 
Idaho, Washington. 



CHAPTER XLII 


THE STATE JUDICIARY 

The Judiciary in every State includes three sets of courts: 

*— A Supreme court or court of appeal; superior courts of 
record; local courts; but the particular names and relations 
of these several tribunals and the arrangements for criminal 
business vary greatly from State to State. We hear of courts 
of common pleas, probate courts, 1 surrogate courts, prerogative 
courts, courts of oyer and terminer, orphans’ courts, court of 
general sessions of the peace and gaol delivery, quarter ses¬ 
sions, hustings courts, county courts, etc., etc. All sorts of 
old English institutions have been transferred bodily, and 
sometimes look as odd in the midst of their new surroundings 
as the quaint gables of a seventeenth-century house among 
the terraces of a growing London suburb. As respects the 
distinction which Englishmen used to deem fundamental, that 
of courts of common law and courts of equity, there has been 
great diversity of practice. Most of the original thirteen 
colonies once possessed separate courts of chancery, and these 
were maintained for many years after the separation from 
England, and were imitated in a few of the earlier among the 
new States, such as Michigan, Arkansas, Missouri. In some 
of the old States, however, the hostility to equity jurisdiction, 
which marked the popular party in England in the seventeenth 
century, had transmitted itself to America. Chancery courts 
were regarded with suspicion, because thought to be less bound 
by fixed rules, and therefore more liable to be abused by an 
ambitious or capricious judiciary. 2 Massachusetts, for instance, 
would permit no such court, though she was eventually obliged 
to invest her ordinary judges with equitable powers, and to 

1 Admiralty business is within the exclusive jurisdiction of the Federal courts. 

2 Note that the grossest abuses of judicial power by American judges, such 
as the Erie Railroad injunctions of Judge Barnard of New York in 1869, were 
perpetrated in the exercise of equitable jurisdiction. Equity in granting dis¬ 
cretion opens a door to indiscretion, or to something worse. 

507 


508 


THE STATE GOVERNMENTS 


PART II 


engraft a system of equity on her common law, while still 
keeping the two systems distinct. Pennsylvania held out still 
longer, but she also now administers equity, as indeed every 
civilized State must do in substance, dispensing it, however, 
through the same judges as those who apply the common law, 
and having more or less worked it into the texture of the older 
system. Special chancery courts were abolished in New York, 
where they had flourished and enriched American jurispru¬ 
dence by many admirable judgments, by the democratizing 
constitution of 1846; and they now exist only in a few of the 
States, chiefly older Eastern or Southern States, 1 which, in 
judicial matters, have shown themselves more conservative 
than their sisters in the West. In seven States (Connecticut, 
New York, North Carolina, Georgia, Ohio, California, and Idaho) 
there has been a complete fusion of law and equity, although 
there are several others which have provided that the legisla¬ 
ture shall abolish the distinction between the two kinds of pro¬ 
cedure. Many, especially of the newer States, provide for the 
establishment of tribunals of arbitration and conciliation. 

The jurisdiction of the State courts, both civil and criminal, 
is absolutely unlimited, i.e. there is no appeal from them to 
the Federal courts, except in certain cases specified by the 
Federal Constitution, being cases in which some point of Fed¬ 
eral law arises. Certain classes of cases are, of course, reserved 
for the Federal courts and in some the State courts enjoy a 
concurrent jurisdiction. 2 All crimes, except such as are pun¬ 
ishable under some Federal statute, are justiciable by a State 
court; and it is worth remembering that in all, or nearly all, 
States there exist much wider facilities for setting aside the 
verdict of a jury finding a prisoner guilty, by raising all sorts 
of points of law, than are permitted by the law and practice of 
any European country. Such facilities have been and are 
abused, to the great detriment of the community. 

One or two other points relating to law and justice in the 
States require notice. Each State recognizes the judgments 
of the courts of a sister State, gives credit to its public acts 
and records, and delivers up to its justice any fugitive from its 
jurisdiction, permitting him, moreover, to be (if necessary) 
tried for some other offence than that in respect of which his 

1 Delaware, New Jersey, Vermont, Tennessee, Michigan, Alabama, Mississippi. 

2 See Chapter XXII. ante. 



CHAP. XLII 


THE STATE JUDICIARY 


509 


extradition was obtained. Of course the courts of one State 
are not bound either by law or usage to follow the reported 
decisions of those of another State. They use such decisions 
merely for their own enlightenment, and as some evidence of 
the common law, just as they use the English law reports. 
Most of the States have within the last half century made 
sweeping changes, not only in their judicial system, but in the 
form of their law. They have revised and codified their stat¬ 
utes, a corrected edition whereof is issued every few years. 
They have in many instances adopted codes of procedure, and 
in some cases have even enacted codes embodying the sub¬ 
stance of the common law, and fusing it with the statutes. 
Such codes, however, have been generally condemned by the 
judgment of the abler and more learned part of the profession, 
as rendering the law more uncertain and less scientific. 1 But 
with the masses of the people the proposal is popular, for it 
holds out a prospect, unfortunately belied by the result in 
States which, like California, have tried the experiment, of a 
system whose simplicity will enable the layman to understand 
the law, and render justice cheaper and more speedy. A 
really good code might have these happy effects. But it may 
be doubted whether the codifying States have taken the steps 
requisite to secure the goodness of the codes they enact. And 
there is a grave objection to the codification of State law which 
does not exist in a country like England or France. So long as 
the law of a State remains common law, i.e. rests upon custom 
embodied in decisions given by the judges, the law of each 
State tends to keep in tolerable harmony with that of other 
States, because each set of judges is enlightened by and dis¬ 
posed to be influenced by the decisions of the Federal courts 
and of judges in other States. But when the whole law of a 
State has been enacted in the form of a code all existing diver¬ 
gences between one State and another are sharpened and 
perpetuated, while new divergences may probably be created. 
Hence codification increases the variations of the law between 
different States, and these variations tend to impede business 
and disturb the ordinary relations of life. 


1 This is perhaps less true of Louisiana, where the civil law of Rome, which 
may be said to have been the common law of the State, offered a better basis 
for a code than the English common law does. The Louisiana code is based on 
the Code Napoleon. 



510 


THE STATE GOVERNMENTS 


PART II 


Important as are the functions of the American judiciary, the 
powers of a judge are limited by the State Constitutions in a 
manner surprising to Europeans. He is not generally allowed 
to charge the jury on questions of fact, 1 but only to state the 
law. He is sometimes required to put his charge in writing. 
His power of committing for contempt of court is often re¬ 
stricted. Express rules forbid him to sit in causes wherein he 
can have any family or pecuniary interest. In one Constitu¬ 
tion his punctual attendance is enforced by the provision that 
if he does not arrive in court within half an hour of the time 
fixed for the sitting, the attorneys of the parties may agree on 
some person to act as judge, and proceed forthwith to the trial 
of the cause. And in California he is not allowed to draw his 
salary till he has made an affidavit that no cause that has 
been submitted for decision for ninety days remains undecided 
in his court. 2 

I come now to three points, which are not only important 
iri themselves, but instructive as illustrating the currents of 
opinion which have influenced the peoples of the States. These 
are — 

The method of appointing the judges. 

Their tenure of office. 

Their salaries. 

The remarkable changes that have been made in the two 
former matters, and the strange practice which now prevails 
in the latter, are full of significance for the student of mod¬ 
ern democracy, full of warning for Europe and the British 
colonies. 

In colonial days the superior judges were appointed by the 
Governors, except in Rhode Island and Connecticut, where the 
legislature elected them. When, in and after 1776, the States 
formed their first Constitutions, four States, 3 besides the two 

1 A frequent form is that in the Constitution of Tennessee of 1870 (Art. vi. § 9) 
— “Judges shall not charge juries with respect to matters of fact, but may 
state the testimony and declare the law.” Washington forbids even comments 
on facts. Some Constitutions are silent on the point. 

2 The Californian judges are said to have contrived to evade this. Idaho has 
a similar provision, but gives the judge only thirty days. Montana provides 
that any judicial officer who absents himself more than sixty consecutive days 
from the State shall be deemed to have forfeited his office. 

3 Virginia, New Jersey, North Carolina, and South Carolina. 



CHAP. XLII 


THE STATE JUDICIARY 


511 


just named, vested the appointment in the legislature, five 1 
gave it to the Governor with the consent of the council ; 
Delaware gave it to the legislature and President (= Governor) 
in joint ballot, while Georgia alone entrusted the election to 
the people. 

In the period between 1812 and 1860, when the tide of democ¬ 
racy was running strong, the function of appointing was in 
several of the older States taken from the Governor or legis¬ 
lature to be given to the people voting at the polls; and this 
became the practice among the new States as they were suc¬ 
cessively admitted to the Union. Mississippi, in 1832, made all 
her judges elected by the people. The decisive nature of the 
change was marked by the great State of New York, which, in 
her highly democratic Constitution of 1846, transferred all 
judicial appointments to the citizens at the polls. 

At present we find that — 

In four States 2 the judges are elected by the legislature. 

In seven States 3 they are appointed by the Governor, subject 
however to confirmation either by the council, or by the legis¬ 
lature, or by one House thereof. •* 

In all the other States, the judges are elected by the 
people. These include nearly all the Western and South- 
Western States, besides New York, Pennsylvania, and Ohio. 

It will be observed that of the eleven States which do not 
appoint the judge by popular election all (except Maine and 
Mississippi) belong to the original thirteen colonies. It is these 
older commonwealths that have clung to the less democratic 
methods of choosing judicial officers ; while the new democracies 
of the West, together with the most populous States of the East, 
New York and Pennsylvania, States thoroughly democratized by 
their great cities, have thrown this grave and delicate function 
into the rude hands of the masses, that is to say, of the wire¬ 
pullers. 

Originally, the superior judges were, in most States, like those 
of England since the Revolution of 1688, appointed for life, and 


1 Massachusetts, New Hampshire, Pennsylvania, Maryland, New York. 

2 Rhode Island, Vermont, Virginia, South Carolina. 

3 Massachusetts, Connecticut, New Hampshire, Delaware, Maine, Missis¬ 
sippi, New Jersey. In Maine and Connecticut probate judges are popularly 
elected. In Florida, though the three justices of the supreme court are now* 
(Constitution of 1886) elected by the people, the seven circuit judges are ap¬ 
pointed by the governor. 



512 


THE STATE GOVERNMENTS 


PART 1* 


held office during good behaviour, i.e. were removable only 
when condemned on an impeachment, or when an address re¬ 
questing their removal had been presented by both houses of the 
legislature. 1 A judge may be removed upon such an address in 
nearly all States, a majority of two-thirds in each house being 
usually required. This salutary provision of the British Consti¬ 
tution against capricious removals has been faithfully adhered to. 
But the wave of democracy has in nearly all States swept away 
the old system of life-tenure. Only three now retain it. 2 In the 
rest a judge is elected or appointed for a term, varying from two 
years in Vermont to twenty-one years in Pennsylvania. Eight 
to ten years is the average term prescribed ; but a judge is always 
re-eligible, and likely to be re-elected if he be not too old, if he 
has given satisfaction to the bar, and if he has not offended the 
party which placed him on the bench. 

The salaries paid to State judges of the higher courts range 
from $10,500 (chief-justice), in Pennsylvania, and $14,200 (chief- 
justice) in New York (in one district $17,500), to $2500 in Ver¬ 
mont. $5000 to $6000 (+ $500 to the chief judge) is the aver¬ 
age, a sum which, especially in the greater States, fails to attract 
the best legal talent. To the rule that justices of the inferior 
courts receive salaries proportionately lower, there are exceptions 
in large cities, where judges of lower tribunals, being more “in 
politics” can sometimes secure salaries quite out of proportion 
to their status. 3 In general the new Western States are the worst 
paymasters, their population of farmers not perceiving the im¬ 
portance of securing high ability on the bench, and deeming 
$4000 a larger sum than a quiet-living man can need. The low¬ 
ness of the scale on which the salaries of Federal judges are fixed 
confirms this tendency. 

Any one of the three phenomena I have described — popu¬ 
lar elections, short terms, and small salaries — would be sufficient 
to lower the character of the judiciary. Popular elections throw 
the choice into the hands of political parties, that is to say, of 
knots of wirepullers inclined to use every office as a means of 
rewarding political services, and garrisoning with grateful par- 

1 The power of impeachment remains but is not often used. 

2 Massachusetts, Rhode Island, New Hampshire, all of them among the 
original thirteen. In Rhode Island the judges are in theory dismissible by 
the legislature. 

3 E.g. the city magistrates of New York City and the circuit judges of Wayne 
County, Michigan, in which Detroit stands. 



CHAP. XLII 


THE STATE JUDICIARY 


513 


tisans posts which may conceivably become of political impor¬ 
tance. In some few States, judges have from time to time 
become accomplices in election frauds, tools in the hands of 
unscrupulous bosses. Injunctions granted by them were moves 
in the party game. Now, short terms, though they afford useful 
opportunities of getting rid of a man who has proved a failure, 
yet has done no act justifying an address for his removal, sap 
the conscience of the judge, for they oblige him to remem¬ 
ber and keep on good terms with those who have made him what 
he is, and in whose hands his fortunes lie. They induce timidity, 
they discourage independence. And small salaries prevent able 
men from offering themselves for places whose income is perhaps 
only one-tenth of what a leading barrister can make by private 
practice. Putting the three sources of mischief together, no 
one will be surprised to hear that in many of the American States 
the State judges are men of moderate abilities and scanty learn¬ 
ing, inferior, and sometimes vastly inferior, to the best of the 
advocates who practise before them. It is less easy to express a 
general opinion as to their character, and particularly as to what 
is called, even in America where fur capes are not worn, the “ pu¬ 
rity of the judicial ermine.” Pecuniary corruption seems, so far 
as a stranger can ascertain, to be rare, inmost States very rare, but 
there are other ways in which sinister influences can play on a 
judge’s mind, and impair that confidence in his impartiality 
which is almost as necessary as impartiality itself. And apart 
from all questions of dishonesty or unfairness, it is an evil that 
the bench should not be intellectually and socially at least on a 
level with the bar. 

The mischief is serious. But it is in most States smaller than 
a European observer is prepared to expect. In a majority of the 
States where the elective system prevails the bench is respect¬ 
able ; and in some it is occasionally adorned by men of the highest 
eminence. Michigan, for instance, has during many years had 
a strong and respected judiciary. One of its more recent judges 
sat for thirty-two years, having been re-elected six times in 
succession. Seldom are the results so lamentable as might have 
been predicted. New York City, under the dominion of the 
Tweed Ring, has afforded the only instance of flagrant judicial 
scandals ; and even in those loathsome days, the Court of« 
Appeals at Albany, the highest tribunal of the State, retained 
the respect of good citizens. Although judges are sometimes 
2 L 



514 


THE STATE GOVERNMENTS 


PART n 


weak and sometimes subject to political influence, although 
juries are not always above suspicion, still justice in ordinary 
civil causes between man and man is fairly administered over 
the whole Union, and the frequent failures to convict criminals, 
or punish them when convicted, evils on which some eminent 
statesmen and lawyers have recently dwelt, are attributable not 
so much either to weakness or to partiality on a judge’s part as 
to the tenderness of juries and the inordinate delays and com¬ 
plexity of criminal procedure. 

Why then have sources of evil so grave failed to produce 
correspondingly grave results? Three reasons may be sug¬ 
gested : — 

One is the co-existence in every State of the Federal tribunals, 
presided over by judges who are usually capable and almost 
always upright. Their presence helps to keep the State judges, 
however personally inferior, from losing the sense of responsi¬ 
bility and dignity which befits the judicial office, and makes 
even party wirepullers ashamed of nominating as candidates 
men either tainted or notoriously incapable. 

Another is the influence of a public opinion which not only 
recognizes the interest the community has in an honest admin¬ 
istration of the law, but recoils from turpitude in a highly 
placed official. The people act as a check upon the party con¬ 
ventions that choose candidates, by making them feel that they 
damage themselves and their cause if they run a man of doubt¬ 
ful character, and the judge himself is made to dread public 
opinion in the criticisms of a very unreticent press. Demo¬ 
cratic theory, which has done a mischief in introducing the elec¬ 
tive system, partly cures it by subjecting the bench to a light 
of publicity which makes honesty the safest policy. Whatever 
passes in court is, or may be, reported. The judge must give 
his reasons for every judgment he delivers. 

Lastly, there is the influence of the bar, a potent influence 
even in the present day, when its role is less brilliant than in 
former generations. The local party leaders who select the 
candidates and “run” the conventions are in some States mostly 
lawyers themselves, or at least in close relations with some lead¬ 
ing lawyers of the State or district. Now lawyers have not only 
a professional dislike to the entrusting of law to incapable hands, 
the kind of dislike which a skilled bricklayer has to seeing walls 
badly laid, but they have a personal interest in getting fairly 



CHAP. XLII 


THE STATE JUDICIARY 


515 


competent men before whom to plead. It is no pleasure to them 
to have a judge so ignorant or so weak that a good argument is 
thrown away upon him, or that you can feel no confidence that the 
opinion given to a client, on a point of law which you think clear, 
will be verified by the decision of the court. Hence the bar often 
contrives to make a party nomination for judicial office fall, not 
indeed on a leading counsel, because a leading counsel will not 
accept a place with $4000 a year, when he can make $20,000 to 
$30,000 by private practice, but on as competent a member of 
the party as can be got to take the post. Having constantly 
enquired, in every State I visited wherein the system of popular 
elections to judgeships prevails, how it happened that the judges 
were not worse, I was usually told that the bar had interposed to 
prevent such and such a bad nomination, or had agreed to recom¬ 
mend such and such a person as a candidate, and that the party 
had yielded to the wishes of the bar. Occasionally, when the 
wirepullers are on their good behaviour, or the bar is exception¬ 
ally public-spirited, a person will be brought forward who has 
no claims except those of character and learning. But it is 
perhaps more common for the lawyers to put pressure on one or 
other party in nominating its party candidates to select capable 
ones. Thus when some time ago the Republicans of New York 
State were running bad candidates, some leading Republican 
lawyers persuaded the Democrats to nominate better men, and 
thereupon issued an appeal in favour of these latter, who were 
accordingly carried at the ensuing election. 

These causes, and especially the last, go far to nullify the 
malign effects of popular election and short terms. But they 
cannot equally nullify the effect of small salaries. Accord¬ 
ingly, while corruption and partiality are uncommon, infe¬ 
riority to the practising counsel is a conspicuous and frequent 
fault. 

One is obliged to speak generally, because there are differences 
between the various States too numerous to be particularized. 
In some, especially in the North-West, the tone of the party 
managers and of the bar is respectable, and the sense of common 
interest makes everybody wish to have as good men as the sala¬ 
ries will secure. In others there are traditions which even un¬ 
scrupulous wirepullers fear to violate. Pennsylvania, for in-, 
stance, though her legislature and her city governments have been 
impure, still generally elects judges of sufficient learning. The 



516 


THE STATE GOVERNMENTS 


PART II 


scandals of Barnard and Cardozo 1 were due to the fact that the 
vast and ignorant population of New York was dominated by 
a gang of professional politicians who neither feared the good 
citizens nor regarded the bar. 

As there are institutions which do not work as well as they 
theoretically ought, so there are happily others which work 
better. The sale of offices under the old monarchy of France, 
the sale of commissions in the English army till 1871, the bribery 
of electors which in England was once so rife, the sale of ad vow- 
sons and next presentations to livings which still exists in the 
Anglican Church Establishment, were or are all of them inde¬ 
fensible in theory, all mischievous in practice. But none did so 
much harm as a philosophical observer would have predicted, 
because other causes were mitigating their evils. 

As respects recent years, some changes have been for the 
better, some for the worse. Two States which had vested the 
appointment of judges in the legislature, like Connecticut, or 
in the people, like Mississippi, have by constitutional amend¬ 
ments or new Constitutions, given it to the governor with the 
consent of the legislature or of one house thereof. 2 Others 
have raised the salaries, or lengthened the terms of the judges, 
or, like New York, have introduced both these reforms. But all 
the States admitted within that period have vested the choice 
of judges in the people. Even Kentucky in 1891 could not be 
induced, in spite of the decline of her Bench from its ancient 
fame, to restore the system of appointment by the Executive 
which had prevailed till 1850, while Georgia and Florida took 
appointments from legislature or governor to entrust them to 
popular vote. And Oklahoma, the State whose constitution of 
1907 is a fair indication of Western tendencies, made the judicial 
term of her highest court only six years. In this point, at least, 
the tide of democracy which went on rising for so many years, 
seems, if it has not risen further, yet not to have receded. 

A significant evidence of the want of confidence in the State 
Judiciary is afforded by the recent introduction into the Con¬ 
stitutions of Oregon, California, Arizona, Colorado, and Nevada 
of a provision for applying to the Bench the system of Recall 

1 The notorious Tweed Ring judges of 1869-71. 

2 In Connecticut the change was made at the instance of the Bar Associa¬ 
tion of the State, which had seen with regret that the dominant party in the 
State legislature was placing inferior men on the bench. 



CHAP. XLII 


THE STATE JUDICIARY 


517 


mentioned in the last preceding chapter. The tendency of such 
a plan to reduce such independence as judges still retain is 
evident: and the only serious argument for it is to be found in 
the fact that in some States there are some few judges fit for 
nothing but to be recalled. One State, Colorado, also permits 
the people by a vote to reverse a particular decision, given by a 
State Court, of which they disapprove. 

When in a Western State where he finds that some of the 
judges command little respect, because known to be amenable 
to influences from powerful politicians, the traveller enquires 
why the people do not try to secure the independence of the 
Bench by vesting appointments in the Governor, or at least by 
choosing the judges for longer terms and paying them larger 
salaries, he is told that the masses consider the judges already 
too likely to be influenced by the corporations, already too liable 
to show insufficient sympathy for the people. That is no hopeful 
outlook, for it shows how deep the causes lie which have reduced 
the efficiency and the dignity of the judiciary. Nevertheless, 
even in such a State it may be hoped that the conditions which 
have worked so much evil will ultimately pass away. The 
American people, though sometimes over bold in their experi¬ 
ments, have a fund of good sense which makes them watchful 
of results, and will in time lead them to find the remedies which 
the case requires. It is to be regretted that the particular 
remedy which some western States are now applying does not 
seem to strike at the root of the disease. 



CHAPTER XLIII 


STATE FINANCE 

The financial systems in force in the several States furnish 
one of the widest and most instructive fields of study that the 
whole range of American institutions presents to a practical 
statesman, as well as to a student of comparative politics. It 
is much to be wished that some person equipped with the neces¬ 
sary special knowledge could survey them with a philosophic 
eye, and present the results of his survey in a concise form. 
From such an attempt I an interdicted not only by the want 
of that special knowledge, but by the compass of the subject, 
and the difficulty of obtaining in Europe adequate materials. 
These materials must be sought not so much in the Constitutions 
of the States as in their statutes, and in the reports presented by 
the various financial officials, and by the commissions of in¬ 
vestigation which are occasionally appointed. All I can here 
attempt is to touch on a few of the more salient features of the 
topic, and to cull from the Constitutions some illustrations of 
the dangers feared and the remedies desired by the people of the 
States. What I have to say falls under the heads following : 

Purposes for which State revenue is required. 

Forms of taxation. 

Exemptions from taxation. 

Methods of collecting taxes. 

Limitations imposed on the power of taxing. 

State indebtedness. 

Restrictions imposed on the borrowing power. 

I. The budget of a State is seldom large, in proportion to the 
wealth of its inhabitants, because the chief burden of adminis¬ 
tration is borne not by the State, but by its subdivisions, the 
counties, and still more the cities and townships. The chief 
expenses which a State undertakes in its corporate capacity 

518 


CHAP. XLIII 


STATE FINANCE 


519 


are—(1) The salaries of its officials, executive and judicial, 
and the incidental expenses of judicial proceedings, such as pay¬ 
ments to jurors and witnesses ; (2) the State volunteer militia ; 
(3) charitable and other public institutions, such as State lunatic 
asylums, State universities, agricultural colleges, etc.; 1 (4) grants 
to schools; 2 (5) State prisons, comparatively few, since the 
prison is usually supported by the county; (6) State buildings 
and public works, including, in a few cases, canals ; (7) payment 
of interest on State debts. Of the whole revenue collected in 
each State under State taxing laws, a comparatively small part 
is taken by the State itself and applied to State purposes. 3 In 
1882 only seven States raised for State purposes a revenue 
exceeding $2,000,000. In 1905-1906 the gross revenue of New 
York State was $39,000,000 (pop. in 1905, 8,000,000) ; that of 
Massachusetts, $10,700,000. These are small sums when com¬ 
pared either with the population and wealth of these States, or 
with the revenue raised in them by local authorities for local 
purposes. They are also small in comparison with what is raised 
by indirect taxation for National purposes. 

II. The National government raises its revenue by indirect 
taxation, and by duties of customs and excise, 4 though it has the 
power of imposing direct taxes, and used that power freely 
during the Civil War. In 1894 it imposed an income tax, 
exempting, however, smaller incomes, but the Supreme court, 


1 The Constitutions of Louisiana and Georgia allow State revenue to be ap¬ 
plied to the supplying of wooden legs and arms to ex-Confederate soldiers; 
Mississippi directs pensions to be provided for them or their widows. 

2 All States have set apart for the support of schools, agricultural and me¬ 
chanical colleges, and other educational or benevolent institutions, often in¬ 
cluding universities, a considerable fund derived from the sale of Western 
lands granted for the purpose by the Federal government at various times, be¬ 
ginning from 1785, and derived in some cases also from lands appropriated 
originally by the State itself to these objects. Down to 1911, 96,428,833 acres 
had been granted by the United States government for educational purpose. 

3 In the State of Connecticut (population in 1910, 1,114,756) the total revenue 
raised by taxation in 1908 was $15,324,873.25 which was collected by and for the 
following authorities and purposes; — 

The State.$3,622,002.87 


Boroughs. 738,422.32 

Towns. 4,798,213.91 

Cities over 25,000 population. 5,223,557.55 

Smaller cities. 942,676.60 


4 Stamp duties were also resorted to during the Civil War and the war with 
Spain, but at present none are levied by the National government. 








520 


THE STATE GOVERNMENTS 


PART II 


by a majority, held this to be unconstitutional. 1 State revenue, 
on the other hand, arises almost wholly from direct taxation, 
since the Federal Constitution forbids the levying of import or 
export duties by a State, except with the consent of Congress, 
and directs the produce of any such duties as Congress may per¬ 
mit to be paid into the Federal treasury. The chief tax is in 
every State a property tax, based on a valuation of property, 
and generally of all property, real and personal,within the taxing 
jurisdiction. 

The valuation is made by officials called appraisers or as¬ 
sessors, appointed by the local communities, though under 
general State laws. 2 It is their duty to put a value on all tax¬ 
able property; that is, speaking generally, on all property of 
whatever nature which they can discover or trace within the 
area of their authority. As the contribution to the revenues 
of the State or county, leviable within that area, is proportioned 
to the amount and value of taxable property situate within it, 
the local assessors have, equally with the property owners, an 
obvious motive for valuing on a low scale, for by doing so they 
relieve their community of part of its burden. The State 
accordingly strives in divers ways to check and correct them, 
sometimes by creating what is called a Board of Equalization, 
which compares and revises the valuations made by the various 
load officers, with the aim of having taxable property in each 
locality equally and fairly valued, and made thereby to bear 
its due share of public burdens. Similarly a county has often 
an equalization board to supervise and adjust the valuations of 
the towns and cities within its limits. However, the existence 
of such boards does not overcome the difficulty of securing a really 
equal valuation, and the honest county or town which puts its 
property at a fair value suffers by paying more than its share. 
Valuations are generally made at a figure much below the true 
worth of property. In Connecticut, for instance, the law directs 
the market price to be the basis, but real estate is valued only at 
from one-third to three-fourths thereof. 3 Indeed one hears 

1 In 1913 an amendment to the Constitution (the 16th), authorizing Congress 
to levy an income tax, was passed, and a statute imposing an income tax was 
enacted. 

2 The account in the text does not, of course, claim to be true in all particu¬ 
lars for every State, but only to represent the general usage. 

3 The special commission on taxation in Connecticut, in their singularly 
clear and interesting report of 1887, observe: “One great defect in the prac¬ 
tical execution of our tax laws consists in inequalities of assessment and valua- 



CHAP. XLIII 


STATE FINANCE 


521 


everywhere in America complaints of inequalities arising from 
the varying scales on which valuers proceed . * 1 

A still more serious evil is the fact that so large a part of 
taxable property escapes taxation. Lands and houses cannot 
be concealed ; cattle and furniture can be discovered by a zeal¬ 
ous tax officer. But a great part, often far the largest part of 
a rich man’s wealth, consists in what the Americans call “ in¬ 
tangible property,” notes, bonds, book debts, and Western 
mortgages . 2 At this it is practically impossible to get, except 
through the declaration of the owner; and even if the owner 
is required to present his declaration of taxable property upon 
oath, he is apt to omit this kind of property. The Connecticut 
commissioners reported that 

“the proportion of these intangible securities to other taxable property 
has steadily declined from year to year. In 1855 it was nearly 10 per 
cent of the whole, in 1865 about 73^ per cent, in 1875 a little over 5 per 
cent, and in 1885 about 3 z /i per cent. Yet during the generation covered 
by these statistics the amount of State railroad and municipal bonds, 
and of Western mortgage loans has very greatly increased, and our 
citizens have, in every town in the State, invested large sums in them. 
Why then do so few get into the tax list ? The terms of the law are 
plain, and the penalties for its infringement are probably as stringent 
as the people will bear. . . . The truth is that no system of tax laws 
can ever reach directly the great mass of intangible property. It is 
not to be seen, and its possession, if not voluntarily disclosed, can in 
most cases be only the subject of conjecture. The people also in a free 
government are accustomed to reason for themselves as to the justice 
and validity of the laws, and too apt to give themselves the benefit of 


tion. This shows itself especially as between the different towns. ... It is 
notorious that in few, if any, towns do the assessors value real estate at what they 
think it is fairly worth. On the contrary, they generally first make this appraisal 
of its actual value, and then put it in the list at a certain proportion of such 
appraisal, varying from 33% to 75 per cent. Similar reductions are made in 
valuing personal property, though with less uniformity, and so perhaps with 
more injustice” (p. 8). ‘‘Household furniture above 8500 in value constitutes 
an item of only $9500 in one of our cities, while a neighbouring town of not 
more than half the population returns $12,900” (p. 16). 

1 In California much agitation arose in 1909 over the question whether the 
valuations made in and around Los Angeles in the southern part of the State had 
been unduly low as compared with those in the more northerly parts. 

2 The difficulty does not arise with stock or shares even when held in a com¬ 
pany outside a State, because all States now tax corporations or companies 
within their jurisdiction, and the principle is generally (though not univer¬ 
sally) adopted, that where stocks in a corporation outside the State have been 
so taxed, they shall not be again taxed in the hand of the holder of the stock, 
who may reside within the State. State laws and tax assessors can in each 
State succeed in reaching the property of the corporation itself. 




522 


THE STATE GOVERNMENTS 


PART II 


the doubt when they have in any way the power to construe it for them¬ 
selves. Such a power is practically given in the form of oath used in 
connection with our tax lists, since it refers only to such property of the 
parties giving them in as is taxable according to their best knowledge, 
remembrance, or belief. The man who does not believe that a Western 
farm loan or foreign railroad bond ( i.e . bond of a company outside the 
State) ought to be taxed, is too often ready to swear that to the best of 
his belief it is not liable to taxation. ... As the law stands, it may 
be a burden on the conscience of many, but it is a burden on the prop¬ 
erty of few, not because there are few who ought to pay, but because 
there are few who can be made to pay. Bonds and notes held by an 
individual are for the most part concealed from the assessors, nor do 
they in most towns make much effort to ascertain their existence. 1 
The result is that a few towns, a few estates, and a few persons of a high 
sense of honesty, bear the entire weight of the tax. Such has been the 
universal result of similar laws elsewhere.” 

A comparison of the tax lists with the probate records con¬ 
vinced the commissioners that, whereas in 1884 more than a 
third of the whole personal property assessed in the State of 
Connecticut escaped taxes, the proportion not reached by taxa¬ 
tion was in 1886 much greater; and induced them to recom¬ 
mend that “all the items of intangible property ought to be 
struck out of the tax list.” The probate inventories of the 
estates of deceased persons, and the last returns made to the 
tax assessors by those persons, “show, to speak of it mildly, 
few points of contact.” Connecticut is a commonwealth in 
most respects above the average. In every part of the country 
one hears exactly the same. 2 The tax returns sent in are rarely 

1 “A person, formerly assessor in one of our leading cities, reported that he 
had made efforts when in office to get this kind of property into the ‘grand 
list,’ and succeeded during his last two years in finding out and adding over 
$200,000 of it; but he adds, * That may have had something to do with my 
defeat when election came around.’” So in West Virginia when an assessor 
objecting to a merchant’s declaration threatened to swear the merchant, the 
latter replied, ‘‘If you swear me, I’ll vote against you next time.” 

2 The West Virginian tax commission, in 1884, says, “At present all taxes 
from invisible property come from a few conspicuously conscientious citizens, 
from widows, executors, and from guardians of the insane and infants ; in fact, 
it is a comparatively rare thing to find a shrewd trader who gives in any con¬ 
siderable amount of notes, stocks, or money. The truth is, things have come 
to such a condition in West Virginia that, as regards paying taxes on this kind 
of property, it is almost as voluntary and is considered pretty much in the same 
light as donations to the neighbourhood church or Sunday school.” Reports 
of commissioners in several other States are to the same effect. See, especially, 
the Report of the Tax Commission of Baltimore, 1886 ; and the supplementary 
Report of one member of the Maryland Tax Commission, Mr. Richard T. Ely, 
in which much instructive evidence as to the failure in various States of the 
efforts made to tax intangible property has been collected and set forth (Bab 



CHAP. XLIII 


STATE FINANCE 


523 


truthful; and not only does a very large percentage of property 
escape its lawful burdens, but “the demoralization of the public 
conscience by the frequent administration of oaths, so often 
taken only to be disregarded, is an evil of the greatest magni¬ 
tude. Almost any change would seem to be an improvement.” 1 

There is probably not a State in the Union of which the 
same thing might not be said. In Ohio, for instance, the 
Governor remarked in a special message of April, 1887 : 

“The great majority of the personal property of this State is not 
returned, but entirely and fraudulently withheld from taxation. The 
idea seems largely to prevail that there is injustice and inequality in 
taxation, and that there is no harm in cheating the State, although to 
do so a false return must be made and perjury committed. This offence 
against the State and good morals is too frequently committed by men 
of wealth and reputed high character, and of corresponding position in 
society.” 

In New York there was a shrinkage in the valuation of per¬ 
sonalty from 1871 to 1884 of $107,184,371, and in 1888 per¬ 
sonalty paid only 10 per cent, realty 90 per cent, of the State 
taxation. In 1908 realty was valued at $8,553,298,187 and per¬ 
sonalty at $620,268,058. Personalty paid only 6f per cent of 
the State taxation, realty 93^ per cent. In California personal 
property was assessed at $220,000,000 in 1872, and at 
$251,000,000 in 1902, while in the same thirty years real estate 
rose from $417,000,000 to $974,000,000. 

I have dwelt upon these facts, not only because they illus- 

timore, 1888). A Boston commission reported, in 1891, in favour of taxing real 
estate only; arguing that under the laws of Massachusetts taxing personalty, 
much property was really twice taxed. Similarly a New York Commission in 
1906. 

1 Judge Foster, in the case of Kirtland v. Hotchkiss, 42 Conn. Rep., p. 449. 
So Mr. David A. Wells, in his report as Special Tax Commissioner to the New 
York Legislature, says : “Oaths as a matter of restraint or as a guarantee of 
truth in respect to official statements have in great measure ceased to be effec¬ 
tual ; or in other words, perjury, direct or constructive, has become so common 
as to almost cease to occasion notice. This is the all but unanimous testimony of 
officials who have of late had extensive experience in the administration of both 
the national and State revenue laws.” 

Professor E. R. A. Seligman, in a valuable article in the Political Science 
Quarterly for March 1890, sums up the case against a property tax as follows : 

“The property tax of to-day, because of its attempt to tax intangible as 
well as tangible things, sins against the cardinal rules of uniformity, of equality, 
and of universality of taxation. It puts a premium on dishonesty and debauches 
the public conscience. It reduces deception to a system and makes a science of 
knavery. It presses hardest on those least able to pay. It imposes double 
taxation on one man and grants entire immunity to the next.” 




524 


THE STATE GOVERNMENTS 


PART II 


trate the difficulties inherent in a property tax, difficulties of 
course greater where such independent taxing authorities as the 
several States are close together, but also because they help to 
explain the occasional bitterness of feeling among the American 
farmers as well as the masses against capitalists, much of whose 
accumulated wealth escapes taxation, while the farmer who owns 
his land, as well as the working man who puts his savings into 
the house he lives in, is assessed and taxed upon this visible 
property. We may, in fact, say of most States, that under the 
present system of taxation the larger is the city the smaller is the 
proportion of personalty reached by taxation (since concealment 
is easier in large communities), and the richer a man is the smaller 
in proportion to his property is the contribution he pays to the 
State . 1 Add to this that the rich man bears less, in proportion 
to his income, of the burden of indirect taxation, since the pro¬ 
tective tariff raises the price not merely of luxuries but of all 
commodities, except some kinds of food . 2 

Besides the property tax, which is the main source of revenue, 


1 In Iowa the State Auditor reported that “the class of property that escapes 
taxation most is that which pays the largest dividend” ; and in Kentucky that 
“the property of the small owner is as a rule valued by a far higher standard than 
that of his wealthy neighbour.” 

2 An experienced Massachusetts publicist writes to me apropos of the passage 
in the text: “If one State compels a man to make a full declaration of his 
personal property for taxation and another does not, there will be a tendency for 
capital to flow from the former to the latter. In Vermont, for instance, a law 
has been passed requiring every person under penalty to make sworn returns of 
his movable property, and the result is that capital seems to be leaving that 
State. 

“In New York the law taxes personal property, but if a person makes no 
return the assessors are instructed to ‘doom’ him according to the best of their 
knowledge and belief; and the amount becomes a matter of ‘trade.’ Returns 
are practically made only by trustees and corporations, not by capitalists. It 
is a case of bad law tempered by violation. 

“In Massachusetts the practice in each town depends mainly upon the as¬ 
sessors. In Boston the chief office having resolved to let no one escape, went on 
for twenty years increasing the assessment each year till the victim makes a 
return. At first, men had some scruple about leaving the city before 1st May 
(the date of residence when taxes are assessed), but these were soon overcome, 
and now nearly all the capitalists have country places where they retire at a still 
inclement season, and are received with open arms by the local assessors, who 
accept just what they choose to pay, while their political influence, their taxes, 
and their public donations are lost to the city. Occasionally the assessors in a 
country town take it into their heads to apply the screw after the fashion of the 
city authority, and then there is a fine turmoil. As the rich men generally live 
in one quarter of the (country) town, the next step is to apply to the legislature 
to get the town divided, and the vicinity of Boston has thus been gradually 
cut up into small pieces.” 



CHAP. XLIII 


STATE FINANCE 


525 


the States often levy taxes on particular trades or occupations, 1 
sometimes in the form of a licence tax, taxes on franchises en¬ 
joyed by a corporation, taxes on railroad stock, or (in a few 
States) taxes on collateral inheritances. Comparatively little 
resort has hitherto been had to the so-called “death-duties,” 
i.e. probate, legacy, and succession duties, nor is much use made 
of an income tax. Nine States, however, authorize it, and two 
(South Carolina and Oklahoma) allow it to be graduated. New 
York taxes stock exchange transactions. As regards poll taxes 
there is much variety of practice. A few State Constitutions 
( e.g . Ohio) forbid such an impost, as “grievous and oppressive” ; 
others direct it to be imposed, or allow the legislature to impose 
it, while about one-half do not mention it. Where it exists, 
there is sometimes a direction that it shall be applied to schools 
or some other specified useful purpose, such as poor relief, so as 
to give the poor, who perhaps pay no other direct tax, a sense of 
their duty to contribute to public objects, and especially to those 
in whose benefits they directly share. The amount of a poll 
tax is always small, $1 to $3,—North Dakota allows $4 : 
sometimes (as in Tennessee) the payment of it is made a pre¬ 
requisite to the exercise of the electoral franchise. It is scarcely 
ever imposed on women or minors. 

In some States “foreign” corporations, i.e. those chartered 
by or domiciled in another State, are taxed more heavily than 
domestic corporations. The laws of the States differ widely 
in their provisions regarding the incorporation of companies. 

Instances are beginning to appear of a progressive inheritance 
duty. Two States, Minnesota and Oklahoma, authorize it; and 
Oregon enacted (in 1909) such an impost which reaches 6 per 


1 North Carolina empowers its legislature to tax all trades, professions, and 
franchises. Arkansas in 1868 (Article x. § 17) directed its general assembly to 
“tax all privileges, pursuits, and occupations that are of no real use to society,’’ 
adding that all others shall be exempt. But having apparently found it hard to 
determine which occupations are useless, she dropped the direction in her Con¬ 
stitution of 1874, and now merely empowers the taxation of “hawkers, pedlers, 
ferries, exhibitions, and privileges.” 

The persons or things on whom licence taxes or occupation taxes may be 
imposed are the following, some being mentioned in one State Constitution, 
some in another — Pedlers, hawkers, auctioneers, brokers, pawnbrokers, mer¬ 
chants, commission merchants, “persons selling by sample,” showmen, jugglers,** 
innkeepers, toll bridges, ferries, telegraphs, express agents {i.e. parcels delivery), 
grocery keepers, liquor dealers, insurance, vendors of patents, persons or corpo¬ 
rations using franchises or privileges, banks, railroads, destructive domestic 
animals, dealers in “options” or “futures.” 



526 


THE STATE GOVERNMENTS 


PART II 


cent for estates exceeding $50,000. California in her famous 
Constitution of 1879 attempted to tax the same property twice 
over. 

There is always a desire to hit incorporated companies, espe¬ 
cially banks and railroads. 1 The newer Constitutions often 
direct the legislature to see that such undertakings are duly 
taxed, sometimes forbidding it ever to deprive itself of the power 
of taxing any corporation, doubtless from the fear that these 
powerful bodies may purchase from a pliant legislature exemp¬ 
tion from civic burdens. The methods, however, of taxing 
corporations vary greatly from State to State, and are at present 
in a chaotic condition. 

III. In most States, certain descriptions of property are 
exempted from taxation, as for instance, the buildings or other 
property of the State, or of any local community, burying 
grounds, schools and universities, educational, charitable, scien¬ 
tific, literary, or agricultural institutions or societies, public 
libraries, churches and other buildings or property used for 
religious purposes, cemeteries, household furniture, farming 
implements, deposits in saving banks. Often too it is provided 
that the owner of personal property below a certain figure shall 
not pay taxes on it, and occasionally ministers of religion are 
allowed a certain sum (as for instance in New York, $1500) 
free from taxation. 

No State can tax any bonds, debt certificates, or other securi¬ 
ties issued by, or under the authority of, the Federal govern¬ 
ment, including the circulating notes commonly called “ green¬ 
backs.” This has been held to be the law on the construction 
of the Federal Constitution, and has been so declared in a statute 
of Congress. Many intricate questions have arisen on this 
doctrine; which, moreover, introduces an element of difficulty 
into State taxation, because persons desiring to escape taxation 
are apt to turn their property into these exempted forms just 
before they make their tax returns. 

IV. Some of the State taxes, such, for instance, as licence 
taxes, or a tax on corporations, are directly levied by and paid 
to the State officials. But others, and particularly the property 
tax, which forms so large a source of revenue, are collected 

1 As to banks, which were an object of as much popular dislike in the middle 
of last century, as railroads subsequently became, see Ohio Constitution of 1851, 
Article xii. § 3. 



CHAP. XLIII 


STATE FINANCE 


527 


by the local authorities. The State having determined what 
income it needs, apportions this sum among the counties, or in 
New England, sometimes directly among the towns, in propor¬ 
tion to their paying capacity, that is, to the value of the prop¬ 
erty situate within them. 1 So similarly the counties apportion 
not only what they have to pay to the State, but also the sum 
they have to raise for county purposes, among the cities and town¬ 
ships within their area, in proportion to the value of their tax¬ 
able property. Thus, when the township or city authorities 
assess and collect taxes from the individual citizen, they usually 
collect at one and the same time three distinct sets of taxes, 
the State tax, the county tax, and the city or township tax. 
Retaining the latter for local purposes, 2 they hand on the two 
former to the county authorities, who in turn retain the county 
tax, handing on to the State what it requires. Thus trouble 
and expense are saved in the process of collecting, and the citi¬ 
zen sees in one tax-paper all he has to pay. 

V. Some States, taught by their sad experience of reckless 
legislatures, limit by their Constitutions the amount of taxation 
which may be raised for State purposes in any one year. Thus 
Texas in 1876 forbade the State property tax to exceed one-half 
per cent on the valuation (exclusive of the sum needed to pay 
interest on the State debt), and has since reduced the percentage 
to .35. North Dakota (1889) fixed .4, Montana .3, as the per¬ 
centage. A similar provision exists in Missouri, and in some other 
Southern or Western States. We shall see presently that this 
method of restriction has been more extensively applied to cities 
and other subordinate communities. Sometimes we find direc¬ 
tions that no greater revenue shall be raised than the current 
needs of the State require, a rule which Congress would have done 
well to observe, seeing that a surplus revenue invites reckless ex¬ 
penditure and gives opportunity for legislative jobbery. 3 

It may be thought that the self-interest of the people is suffi¬ 
cient to secure economy and limit taxation. But, apart from 
the danger of a corrupt legislature, it is often remarked that as 
in many States a large proportion of the voters do not pay 

1 As ascertained by the assessors and board of equalization. 

2 Sometimes, however, the town or township in its corporate capacity pays 
the State its share of the State tax, instead of collecting it specifically from 
individual citizens. 

3 Sir T. More in his Utopia mentions with approval a law of the Macarians 
f orbidding the king to have ever more than £1000 in the public treasury. 



528 


THE STATE GOVERNMENTS 


PART II 


State taxes, the power of imposing burdens lies largely in the 
hands of persons who have no direct interest, and suppose 
themselves to have no interest at all, in keeping down taxes 
which they do not pay. So far, however, as State finance is 
concerned, this has been no serious source of mischief, and 
more must be attributed to the absence of efficient control over 
expenditure, 1 and to the fact that (as in Congress) the committee 
which reports on appropriations of the revenue is distinct from 
that which deals with the raising of revenue by taxation. 

Another illustration of the tendency to restrict the improvi¬ 
dence of representatives is furnished by the prohibitions in 
many Constitutions to pass bills appropriating moneys to any 
private individual or corporation, or to authorize the payment 
of claims against the State arising under any contract not 
strictly and legally binding, or to release the claims which the 
State may have against railroads or other corporations. One 
feels, in reading these multiform provisions, as if the legis¬ 
lature was a rabbit seeking to issue from its burrow to ravage 
the crops wherever it could, and the people of the State were 
obliged to close every exit, because they could not otherwise 
restrain its inveterate propensity to mischief. 

VI. Nothing in the financial system of the States better 
deserves attention than the history of the State debts, their 
portentous growth, and the efforts made, when the people had 
taken fright, to reduce their amount, and to set limits to them 
in the future. 

In the first decades of the nineteenth century when those rich 
and ample Western lands which now form the States of Ohio, 
Indiana, Illinois, Michigan, and Missouri were being opened up 
and settled, and again, some time later, when the railway system 
was in the first freshness of its marvellous extension, and was 
filling up the lands along the Mississippi at an increasingly rapid 
rate, every one was full of hope ; and States, counties, and cities, 
not less than individual men, threw themselves eagerly into 
the task of developing the resources which lay around them. 
The States, as well as these minor communities, set to work to 
make roads and canals and railways; they promoted or took 
stock in trading companies, they started or subsidized banks, 

1 Virginia in her Constitution of 1902 creates a standing Committee of Audit 
composed of five members of the Assembly, who have the duty of inspecting 
all the financial officers of the State and are to report to the Governor. 



CHAP. XLIII 


STATE FINANCE 


529 


they embarked in, or pledged their credit for, a hundred enter¬ 
prises which they were ill-fitted to conduct or supervise. Some 
undertakings failed lamentably, while in others the profits 
were grasped by private speculators, and the burden left with 
the public body. State indebtedness, which in 1825 (when 
there were twenty-four States) stood at an aggregate over the 
whole Union of $12,790,728 (£2,500,000), had in 1842 reached 
$203,777,916/ in 1870, $352,866,898. 

A part of the increase in the years between 1842 and 1870 was 
due to loans contracted for the raising and equipping of troops 
by many Northern States to serve in the Civil War, the intention 
being to obtain ultimate reimbursement from the national 
treasury. There was also a good deal, in the way of executed 
works, to show for the money borrowed and expended, and the 
States (in 1870 thirty-seven in number) had grown vastly in 
taxable property. Nevertheless the huge and increasing total 
startled the people, and, as everybody knows, some States ceased 
to pay interest on their debts. The diminution in the total 
indebtedness of 1880, which stood at $290,326,643, and was the 
indebtedness of thirty-eight States and three Territories, is 
partly due to this repudiation. In 1890 the total (then of forty- 
four States and two Territories) stood at $223,107,883, and in 
1902 it was (for the then forty-five States, omitting minor civil 
divisions) $235,000,000. Even after the growth of State debts 
had been checked (in the way to be presently mentioned), 
minor communities, towns, counties, but above all, cities trod 
in the same path, the old temptations recurring, and the risks 
seeming smaller because a municipality had a more direct and 
close interest than a State in seeing that its money or credit 
was well applied. Municipal indebtedness has advanced, espe¬ 
cially in the larger cities, at a dangerously swift rate. Of the 
State and county debt much the largest part had been incurred 
for, or in connection with, so-called “internal improvements”; 
but of the city debt, though a part was due to the bounties 
given to volunteers in the Civil War, much must be set down 
to extremely lax and wasteful administration, and much more 
to mere stealing, practised by methods to be hereafter ex¬ 
plained, but facilitated by the habit of subsidizing, or taking.. 

1 In 1838 it was estimated that of the total debt of the States, then calcu¬ 
lated at $170,800,000, $60,200,000 had been incurred for canals, $42,800,000 
for railroads, and $52,600,000 for banking. 

2 M 



530 


THE STATE GOVERNMENTS 


PART II 


shares in, corporate enterprises which had excited the hopes 
of the citizens. 

VII. The disease spread till it terrified the patient, and a 
remedy was found in the insertion in the Constitutions of pro¬ 
visions limiting the borrowing powers of State legislatures. 
Fortunately the evil had been perceived in time to enable the 
newest States to profit by the experience of their predecessors. 
For the last half century, whenever a State has enacted a 
Constitution, it has inserted sections restricting the borrowing 
powers of States and local bodies, and often also providing 
for the discharge of existing liabilities. Not only the passing of 
bills for raising a State loan has been surrounded with special 
safeguards, such as the requirement of a two-thirds majority 
in each house of the legislature; not only have there been pro¬ 
hibitions ever to borrow money for, or even to undertake, inter¬ 
nal improvements (a fertile source of jobbery and waste, as the 
experience of Congress shows); and not only also almost 
invariably a provision that whenever a debt is contracted the 
same Act shall create a sinking fund for paying it off within a few 
years, but in most Constitutions the total amount of the debt 
was limited, and limited to a sum beautifully small in proportion 
to the population and resources of the State. 1 Thus Wisconsin 
fixed its maximum at $200,000 (£40,000); Minnesota and Iowa 
at $250,000, Ohio at $750,000; Wyoming at one and Idaho at 
one and one-half per cent of the assessed value of taxable 
property •; Nebraska and Montana at $100,000 ; prudent Oregon 
at $50,000; and the great and wealthy State of Pennsylvania, 
with a population then exceeding 5,300,000 (Constitution of 
1873, Art. ix. § 4), at $1,000,000. 2 

In four-fifths of the States, including all those with recent 
Constitutions, the legislature is forbidden to “give or lend the 
credit of the State in aid of any person, association, or corpo¬ 
ration, whether municipal or other, or to pledge the credit of 
the State in any manner whatsoever for the payment of the 

1 Debts incurred for the purpose of suppressing insurrection or repelling 
invasion are excepted from these limitations. 

2 New York (Constitution of 1846, Art. vii. §§ 10-12) named a million of 
dollars as the maximum, but permitted laws to be passed raising loans for “some 
single work or object,” provided that a tax is at the same time enacted sufficient 
to pay off this debt in eighteen years ; and that any such law has been directly 
submitted to the people and approved by them at an election. Similar provi¬ 
sions permitting increase by special popular vote are frequent in recent Consti¬ 
tutions. 





CHAP. XLIII 


STATE FINANCE 


531 


liabilities present or prospective of any individual association, 
municipal, or other corporation,” 1 as also to take stock in a 
corporation, or otherwise embark in any gainful enterprise. 
Many Constitutions also forbid the assumption by the State 
of the debts of any individual or municipal corporation. 

The care of the people for their financial freedom and safety 
extends even to local bodies. Many of the recent Constitu¬ 
tions limit, or direct the legislature to limit, the borrowing 
powers of counties, cities, or towns, sometimes even of incor¬ 
porated school districts, to a sum not exceeding a certain per¬ 
centage on the assessed value of the taxable property within 
the area in question. This percentage is usually five per cent; 
sometimes, however, seven per cent; or even (New York, 
Amend, of 1884) ten per cent. Sometimes also the amount 
of the tax leviable by a local authority in any year is restricted 
to a definite sum — for instance, to one-half per cent on the 
valuation. 2 And, in nearly all the States, cities, counties, or 
other local incorporated authorities are forbidden to pledge 
their credit for, or undertake the liabilities of, or take stock in, 
or otherwise give aid to, any undertaking or company. Some¬ 
times this prohibition is absolute; sometimes it is made sub¬ 
ject to certain conditions, and may be avoided by their 
observance. For instance, there are States in which the peo¬ 
ple of a city can, by special vote, carried by a two-thirds ma¬ 
jority, or, a three-fifths majority, or (in Colorado) by a bare 
majority of the taxpayers, authorize the contracting of a debt 
which the municipality could not incur by its ordinary organs 
of government. Sometimes there is a direction that any mu¬ 
nicipality creating a debt must at the same time provide for 
its extinction by a sinking fund. Sometimes the restrictions 
imposed apply only to a particular class of undertakings e.g. 
banks or railroads. The differences between State and State 
are endless; but everywhere the tendency is to make the pro¬ 
tection against local indebtedness and municipal extravagance 
more and more strict ,* nor will any one who knows these local 


1 Constitution of Missouri of 1875 (Art. iv. § 45), a Constitution whose pro-., 
visions on financial matters and restrictions on the legislature are copious and 
instructive. Similar words occur in nearly all Western and Southern, as well 
as in some of the more recent Eastern Constitutions. 

2 See the elaborate provisions of the Constitution of Missouri of 1875 (Art. x, 

§ 11), and of the Constitution of Montana, 1889 (Art. xii. § 9). 




532 


THE STATE GOVERNMENTS 


PART II 


authorities, and the temptations, both good and bad, to which 
they are exposed, complain of the strictness. 1 

Cases, of course, occur in which a restriction on the taxing 
power or borrowing power of a municipality is found incon¬ 
venient, because a costly public improvement is rendered more 
costly if it has to be done piecemeal. The corporation of 
Brooklyn was thus prevented from making all at once a great 
street which would have been a boon to the city, and more 
money had to be spent in buying up the land for it bit by bit. 
But the evils which have followed in America from the immix¬ 
ture both of States and of cities in enterprises of a public nature, 
and the abuses incident to an unlimited power of undertaking 
improvements, have been so great as to make people willing to 
bear with the occasional inconveniences which are inseparable 
from restriction. 

“A catalogue of these evils would include the squandering of the 
public domain ; the enrichment of schemers whose policy it has been 
first to obtain all they can by fair promises, and then avoid, as far and 
as long as possible, the fulfilment of the promises ; the corruption of 
legislation ; the loss of State credit; great public debts recklessly con¬ 
tracted for ; moneys often recklessly expended ; public discontent, be¬ 
cause the enterprises fostered from the public treasury, and on the 
pretence of public benefit, are not believed to be managed in the public 
interest; and finally, great financial panic, collapse, and disaster.” 2 

;.The provisions above described have had the effect of steadily 
reducing the amount of State debts, although the wealth of 
the country makes rapid strides. This reduction was between 
1870 and 1880, about 25 per cent in the case of State debts, and 
in that of county, town, and school district debts about 8 per 
cent. In the decade ending with 1890 the reduction in State 
debts was $67,218,760 (nearly half of this, however, due to 
scaling down of debts of Southern States); but county debts 
rose from $124,105,027 to $145,048,045, and the school dis¬ 
trict debts from $17,580,682 to $36,701,948. In cities there 
was within the decade 1870-80, not only no reduction, but 
an increase of over 100 per cent, possibly as much as 130 per 
cent. In 1890 the total debt, less sinking fund, of munici¬ 
palities exceeding 4000 inhabitants was returned at $646,507,644 


1 A specimen of the provisions restricting borrowing powers will be found in 
the extracts from the Constitution of Oklahoma in the Appendix. 

2 Cooley, Constit. Limit., p. 266. 




CHAP. XLIII 


STATE FINANCE 


533 


against $623,784,262 in 1880, but owing to the growth of popu¬ 
lation the amount per capita which was $45.06 in 1880, had fallen 
in 1890 to $31.69. In 1902, while the total State debt was, as 
above mentioned, $235,000,000, that of counties and minor civil 
divisions was $1,630,000,000. 

This striking difference between the cities and the States 
may be explained in several ways. One is that cities cannot 
repudiate, while sovereign States can and do. 1 Another may 
be found in the later introduction into State Constitutions 
of restrictions on the borrowing powers of municipalities. 
But the chief cause is to be found in the conditions of the gov¬ 
ernment of great cities, where the wealth of the community 
is largest, and is also most at the disposal of a multitude of 
ignorant voters. Several of the greatest cities lie in States 
which did not till recently, or have not even now, imposed 
adequate restrictions on the borrowing power of city councils. 
Now city councils, as we shall see presently, are not only in¬ 
capable administrators, but are prone to such public improve¬ 
ments as present opportunities for speculation, for jobbery, 
and possibly even for wholesale embezzlement. 

1 In some parts of New England the city, town, or other municipal debt is 
also the personal debt of every inhabitant, and is therefore an excellent security. 



CHAPTER XLIV 


THE WORKING OF STATE GOVERNMENTS 

The difficulty I have already remarked of explaining to 
Europeans the nature of an American State, viz. that there is 
in Europe nothing similar to it, recurs when we come to in¬ 
quire how the organs of government which have been described 
play into one another in practice. To say that a State is 
something lower than the nation but greater than a municipal¬ 
ity, is to say what is obvious, but not instructive; for the 
peculiarity of the State is that it combines some of the fea¬ 
tures which are to Europeans characteristic of a nation and 
a nation only, with others that belong to a municipality. 

The State seems great or small according to the point of 
view from which one regards it. It is vast if one regards the 
sphere of its action and the completeness of its control in that 
sphere, which includes the maintenance of law and order, nearly 
the whole field of civil and criminal jurisprudence, the super¬ 
vision of all local governments, an unlimited power of taxa¬ 
tion. But if we ask, Who are the persons that manage this 
great machine of government; how much interest do the citi¬ 
zens take in it; how much reverence do they feel for it ? the 
ample proportions we had admired begin to dwindle, for the 
persons turn out to be usually insignificant, and the interest 
of the people to have declined. The powers of State author¬ 
ities are powers like those of a European parliament; but 
they are wielded by men most of whom are less distinguished 
and less respected by their fellows than are those who fill the 
city councils of Manchester or Cologne. Several States exceed 
in area and population some ancient European monarchies. 
But their annals may not have been illumined by a single 
striking event or brilliant personality. 

A further difficulty in describing how a State government 
works arises from the endless differences of detail between the 
several States. The organic frame of government is similar 
in all; but its functional activities vary according to the tern- 

534 


CHAP, xliv THE WORKING OF STATE GOVERNMENTS 535 


per and habits, the ideas, education, and traditions of the 
inhabitants of the State. A European naturally says, “Select 
a typical State, and describe that to us.” But there is no 
such thing as a typical State. Massachusetts or Connecticut 
is a fair sample of New England, Minnesota or Iowa of the 
North-West; Georgia or Alabama shows the evils, accom¬ 
panied no doubt by great recuperative power, that still vex 
the South; New York and Illinois the contrast between the 
tendencies of an ignorant city mob and the steady-going farm¬ 
ers of the rural counties. But to take any one of these States 
as a type, asking the reader to assume what is said of it to 
apply equally to the other forty-seven commonwealths, would 
land us in inextricable confusions. I must therefore be con¬ 
tent to speak quite generally, emphasizing those points in 
which the colour and tendencies of State governments are 
much the same over the whole Union, and begging the Euro¬ 
pean reader to remember that illustrations drawn, as they 
must be drawn, from some particular State, will not neces¬ 
sarily be true of every other State government, because its 
life may go on under different conditions. 

The State governments, as has been observed already, bear 
a family likeness to the National or Federal government, a 
likeness due not only to the fact that the latter was largely 
modelled after the systems of the old thirteen States, but 
also to the influence which the Federal Constitution has ex¬ 
erted ever since 1789 on those who have been drafting or amend¬ 
ing State Constitutions. Thus the Federal Constitution 
has been both child and parent. Where the State Constitu¬ 
tions differ from the Federal, they invariably differ in being 
more democratic. It still expresses the doctrines of 1787. 
They express the views of later days, when democratic ideas 
have been more rampant, and men less cautious than the 
sages of the Philadelphia Convention have given legal form 
to popular beliefs. This difference, which appears not only 
in the mode of appointing judges, but in the shorter terms 
which the States allow to their officials and senators, comes 
out most clearly in the relations established between the leg¬ 
islative and the executive powers. The National executive,* 
though disjoined from the legislature in a way strange to Euro¬ 
peans, is nevertheless all of a piece. The President is supreme ; 
his ministers are his subordinates, chosen by him from among 



536 


THE STATE GOVERNMENTS 


PART II 


his political associates. They act under his orders; he is 
responsible for their conduct. But in the States there is nothing 
even distantly resembling a cabinet. The chief executive 
officials are directly elected by the people. They hold by a 
title independent of the State governor. They are not, except 
so far as some special statute may provide, subject to his 
directions, and he is not responsible for their conduct, since he 
cannot control it. As the governor need not belong to the 
party for the time being dominant in the legislature, so the 
other State officials need not be of the same party as the gov¬ 
ernor. 1 They may even have been elected at a different time, 
or for a longer period. 

A European, who studies the mechanism of State govern¬ 
ment — very few Europeans having so far studied it — is at 
first puzzled by a system which contradicts his preconceived 
notions. “How,” he asks, “can such machinery work? One 
can understand the scheme under which a legislature rules 
through officers whom it has, whether legally or practically, 
chosen and keeps in power. One can even understand a scheme 
in which the executive, while independent of the legislature, 
consists of persons acting in unison, under a head directly 
responsible to the people. But will not a scheme, in which the 
executive officers are all independent of one another, yet not 
subject to the legislature, want every condition needed for har¬ 
monious and efficient action? They obey nobody. They are 
responsible to nobody, except a people which exists in concrete 
activity only for one election day every two years, when it is 
dropping papers into the ballot-box. Such a system seems the 
negation of a system, and more akin to chaos.” 

In his attempts to penetrate this mystery, our European 
receives little help from his usually helpful American friends, 
simply because they do not understand his difficulty. Light 
dawns on him when he perceives that the executive business 
of a State is such as not to need any policy, in the European 
sense, and therefore no harmony of view or purpose among 
those who manage it. State policy has been deemed to belong 
to the legislature, and to the legislature alone. 


1 Thus Massachusetts sometimes elects a Democratic governor, but her other 
State officials usually come from the Republican party, and she has for a very 
long time returned a Republican majority to the legislature. So in 1908, Ohio 
elected a Democratic governor while remaining otherwise Republican. 



CHAP, xliv THE WORKING OF STATE. GOVERNMENTS 537 


Compare the Federal President with the State Governor. 
The former has foreign policy to deal with, the latter has none. 
The former has a vast patronage, the latter scarcely any. The 
former has the command of the army and navy, the latter has 
only that of the militia, insignificant in ordinary times. The 
former has a post-office, but there is no State postal-service. 
Little remains to the Governor except his veto, which is not so 
much an executive as a legislative function; the duty of main¬ 
taining order, which becomes important only when insurrection 
or riot breaks out; and the almost mechanical function of repre¬ 
senting the State for various matters of routine, such as demand¬ 
ing from other States the extradition of offenders, issuing writs 
for the election of congressmen or of the State legislature, receiv¬ 
ing the reports of the various State officials. These officials, 
even the highest of them who correspond to the cabinet ministers 
in the National government, are either mere clerks, performing 
work, such as that of receiving and pacing out State moneys, 
strictly defined by statute, and usually checked by other officials, 
or else are in the nature of commissioners of inquiry, who may 
inspect and report, but can take no independent action of impor¬ 
tance. Policy does not lie within their province ; even in execu¬ 
tive details their discretion is confined within narrow limits. 
They have, no doubt, from the governor downwards, opportu¬ 
nities for jobbing and malversation ; but even the less scrupulous 
are restrained from using these opportunities by the fear of some 
investigating committee of the legislature, with possible impeach¬ 
ment or criminal prosecution as a consequence of its report. 
Holding for terms which seldom exceed two or three years, they 
feel the insecurity of their position; but the desire to earn re- 
election by the able and conscientious discharge of their func¬ 
tions, is a less effective motive than it would be if the practice 
of re-electing competent men were more frequent. Unfortu¬ 
nately here, as in Congress, the tradition of many States is, that 
when a man has enjoyed an office, however well he may have 
served the public, some one else ought to have the next turn. 

The reason, therefore, why the system I have sketched rubs 
along in the several States is, that the executive has little to do, 
and comparatively small sums to handle. The further reason 
why it has so little to do is two-fold. Local government is so 
fully developed that many functions, which in Europe would 
devolve on a central authority, are in all American States left 



538 


THE STATE GOVERNMENTS 


PART II 


to the county, or the city, or the township, or the school district. 
These minor divisions narrow the province of the State, just as 
the State narrows the province of the central government. And 
the other reason is, that legislation has in the several States 
pushed itself to the farthest limits, and so encroached on subjects 
which European legislatures would leave to the executive, that 
executive discretion is extinct, and the officers are the mere hands 
of the legislative brain, which directs them by statutes drawn 
with extreme minuteness, carefully specifies the purposes to 
which each money grant is to be applied, and supervises them 
by inquisitorial committees. 

It is a natural consequence of these arrangements that minor 
State offices carry little either of dignity or of power. A place 
is valued chiefly for its salary, or for such opportunities of oblig¬ 
ing friends or securing commissions on contracts as it may pre¬ 
sent, though in the greatest States the post of attorney-general 
or comptroller is often sought by able men. The State Governor, 
however, has never been a nonentity and (as already observed) 
his post seems latterly to have been gaining importance. In 
more than one State a sort of perfume from the old days lingers 
round him, as in Massachusetts, where the traditions of last cen¬ 
tury were renewed by the eminent man who occupied the chair 
of the commonwealth during the War of Secession and did much 
to stimulate and direct the patriotism of its citizens. Though no 
one would nowadays, like Mr. Jay in 1795, exchange the chief 
justiceship of the United States for the governorship of his 
State, a Cabinet minister has been known to quit his place in 
order to obtain the governorship of a great State like New York. 
In all States, the Governor, as the highest official and the deposi¬ 
tary of State authority, may at any moment become the pivot on 
whose action public order turns. In the Pennsylvania riots of 
1877 it was the accidental absence of the Governor on a tour in 
the West which enabled the forces of sedition to gather strength. 
During the more recent disturbances which large strikes, espe¬ 
cially among railway employes, have caused in the West, the 
prompt action of a Governor has preserved or restored tran¬ 
quillity in more than one State; while the indecision of the 
Governor of an adjoining one has emboldened strikers to stop 
traffic, or to molest workmen who had been hired to replace 
them. So in a commercial crisis, like that which swept over 
the Union in 1837, when the citizens are panic-stricken and the 



CHAP. XLIV THE WORKING OF STATE GOVERNMENTS 539 


legislature hesitates, much may depend on the initiative of the 
Governor, to whom the eyes of the people naturally turn. His 
right of suggesting legislative remedies, usually neglected, then 
becomes significant, and may abridge or increase the difficulties 
of the community. 

It is not, however, as an executive magistrate that a State 
Governor usually makes or mars a reputation, but in his quasi¬ 
legislative capacity of agreeing to or vetoing bills passed by 
the legislature. The merit of a Governor is usually tested by 
the number and the boldness of his vetoes; and a European 
enjoys, as I did in the State of New York in 1870, the odd spectacle 
of a Governor appealing to the people for re-election on the 
ground that he had defeated in many and important instances 
the will of their representatives solemnly expressed in the votes 
of both Houses. That such appeals should be made, and often 
made successfully, is due not only to the distrust which the peo¬ 
ple entertain of their legislatures, but also, to their honour be it 
said, to the respect of the people for courage. They like above 
all things a strong man; just as English constituencies prefer 
a candidate who refuses to swallow pledges or be dictated to by 
cliques. 

This view of the Governor as a check on the legislature 
explains why the Americans think it rather a gain than an 
injury to the State that he should belong to the party which is 
for the time being in a minority in the legislature. How the 
phenomenon occurs may be seen by noting the different methods 
of choice employed. The Governor is chosen by a mass vote of 
all citizens over the State. The representatives are chosen by 
the same voters, but in districts. Thus one party may have a 
majority on a gross poll of the whole State, but may find itself 
in a minority in the larger number of electoral districts. In 
New York State at one time the mass vote showed a demo¬ 
cratic majority, because the Democrats were overwhelmingly 
strong in New York City, and some other great centres of pop¬ 
ulation. But in the rural districts and most of the smaller 
towns the Republican party commanded a majority sufficient to 
enable them to carry most districts. Hence, while the Gov¬ 
ernor was often a Democrat, the legislature was often Repub¬ 
lican. Little trouble need be feared from the opposition of 
the two powers, because such issues as divide the national 
parties have scarce any bearing on State affairs. Some good 



540 


THE STATE GOVERNMENTS 


PART II 


may be hoped, because a Governor of the other party is more 
likely to check or show up the misdeeds of a hostile Senate or 
Assembly than one who, belonging to the group of men that 
guide the legislature, has a motive for working with them, 
and might even expect to share any gains they can amass. 1 

Thus we are led back to the legislature, which is normally the 
strongest force in the States, though sometimes a strong Governor 
can by his influence with the people bend it to his will. Let 
us see how it gets on without that guidance which an executive 
ministry supplies to the Chambers of every free European 
country. 

As the frame of a State government generally resembles the 
National government, so a State legislature resembles Congress. 
In most States, it exaggerates the characteristic defects of 
Congress. It has fewer able and high-minded men among its 
members. It has less of recognized leadership. It is sur¬ 
rounded by temptations relatively greater. It is guarded by 
a less watchful and less interested public opinion. But before 
we inquire what sort of men fill the legislative halls, let us ask 
what kinds of business draw them there. 

The matter of State legislation may be classified under three 
heads: 

I. Ordinary private law, i.e. contracts, torts, inheritance, 
family relations, offences, civil and criminal procedure. 

II. Administrative law, including the regulation of munich 
pal and rural local government, public works, education, the 
liquor traffic, vaccination, adulteration, charitable and penal 
establishments, the inspection of mines or manufactories, to¬ 
gether with the general law of corporations, of railroads, and 
of labour, together also with taxation, both State and local, 
and the management of the public debt. 

III. Measures of a local and special nature, such as are 
called in England “private bills,” i.e. bills for chartering and 
incorporating gas, water, canal, tramway, telephone or railway 
companies, or for conferring franchises in the nature of monop- 

1 Sometimes, however, inconvenience arises from the hostility of the State 
Senate and the Governor. On one occasion the Senate of New York persistently 
refused to confirm the nominations made to certain offices by the Governor, 
with the effect of securing the retention in office long beyond their legal term 
of several officials, these old officials holding on and drawing their salaries because 
no new men had been duly appointed to fill their places. The Senate was thought 
to have behaved ill; but the Governor was not trusted and neither exerted nor 
deserved to exert any moral authority. 



CHAP, xliv THE WORKING OF STATE GOVERNMENTS 541 


olies or privileges upon such bodies, or for altering their consti¬ 
tutions, for incorporating cities and minor communities and 
regulating their affairs. 

Comparing these three classes of business, between the first 
and second of which it is no doubt hard to draw a sharp line, 
we shall find that bills of the second class are more numerous 
than those of the first, bills of the third more numerous than 
those of the other two put together. Ordinary private law, 
the law which guides or secures us in the everyday relations 
of life, and upon which nine-tenths of the suits between man 
and man are founded, is not greatly changed from year to year 
in the American States. Many Western, and a few Eastern 
States have made bold experiments in the field of divorce, others 
have added new crimes to the statute-book and amended their 
legal procedure. But commercial law, as well as the law of 
property and civil rights in general, remains tolerably stable. 
People are satisfied with things as they are, and the influence 
of the legal profession is exerted against tinkering. In matters 
of the second class, which I have called administrative, because 
they generally involve the action of the State or of some of 
the communities which exist within it, there is more legislative 
activity. Every session sees experiments tried in this field, 
generally with the result of enlarging the province of govern¬ 
ment, both by interfering with the individual citizen and by 
attempting to do things for him which apparently he either 
does not do or does not do well for himself . 1 But the general 
or “public ” legislation is dwarfed by the “private bill” legis¬ 
lation which forms the third of our classes. The bills that are 
merely local or special outnumber general bills everywhere, and 
outnumber them enormously in those States which do not 
require corporations to be formed under general laws . 2 Such 

1 See Chapter XCVIII. on “Laissez Faire,” in Vol. II. 

Many of these measures have been prepared by associations outside the 
legislature, who embody their wishes in a bill, give it to a member and get it 
passed, perhaps with scarcely any debate. Thus not only the Labour organiza¬ 
tions, and the Grangers (farmers’ clubs), but the Women’s Christian Temperance 
Union, the medical profession, the dentists, the dairymen, get their favourite 
schemes enacted. 

2 In 1901, of 1132 acts passed by the legislature of Alabama, only 90 were 

general laws. „ 

The restrictions imposed on special legislation by the more recent constitu¬ 
tions of Southern and Western States seem to have done some good. Mr. 
Dealey (Our State Constitutions) observes: “In all the States, in the years 
1904 and 1905, 18,937 laws were passed, 8362 of which were general. In the same 



542 


THE STATE GOVERNMENTS 


PART II 


special bills are condemned by thoughtful Americans, not only 
as confusing the general law, but because they furnish, unless 
closely watched, opportunities for perpetrating jobs, and for in¬ 
flicting injustice on individuals or localities in the interest of 
some knot of speculators. They are one of the scandals of the 
country. But there is a further objection to their abundance 
in the State legislatures. They are a perennial fountain of 
corruption. Promoted for pecuniary ends by some incorpo¬ 
rated company or group of men proposing to form a company, 
their passage is secured by intrigue, and by the free expenditure 
of money which finds its way in large sums to the few influen¬ 
tial men who control a State Senate or Assembly, and in smaller 
sums to those among the rank and file of members who are 
accessible to these solid arguments, and careless of any others. 
It is the possibility of making profit in this way out of a seat in 
the legislature which draws to it not a few men in those States 
which, like New York, Pennsylvania, or Illinois, offer a promising 
field for large pecuniary enterprises. Where the carcase is there 
will the vultures be gathered together. The money power, 
which is most formidable in the shape of large corporations, 
chiefly attacks the legislatures of these great States. It is, how¬ 
ever, felt in nearly all States. 1 And even where, as is the case in 
most States, only a small minority of members are open to bribes, 
the opportunity which these numerous local and special bills 
offer to a man of making himself important, of obliging his friends, 
of securing something for his locality and thereby confirming his 
local influence, is sufficient to make a seat in the legislature 
desired chiefly in respect of such bills, and to obscure, in the eyes 
of most members, the higher functions of general legislation which 
these assemblies possess. One may apply to these common¬ 
wealths, though in a new sense, the famous dictum, corruptis- 
sima republica plurimae leges. 

years the (six) New England States whose legislatures are almost unrestricted, 
passed 3877, of which 1162 were general. Six states whose legislatures are fully 
restricted passed 1558 laws, of which 1127 were general. Thus in New England 
special legislation was 70 per cent of the whole, and in the six restricted States 
only 28 per cent of the whole.” 

1 Efforts have of late years been made to remedy these evils. In the State of 
New York, for instance, the number of special bills has been reduced by com¬ 
pelling the application of general laws, and useful provisions introduced for 
bringing all bills to the notice of all members in final form before they come on 
for final passage (Amt. of 1894 to State Constitution). Proposals for ap¬ 
propriations of money are now required to be filed a good while beforehand with 
the State Comptroller and these, tabulated and commented on, are laid before 
the Governor and the Legislature. 



CHAP, xliv THE WORKING OF STATE GOVERNMENTS 543 


One form of this special legislation is peculiarly attractive 
and pernicious. It is the power of dealing by statute with 
the municipal constitution and actual management of cities. 
Cities grow so fast that all undertakings connected with them 
are particularly tempting to speculators. City revenues are 
so large as to offer rich plunder to those who can seize the con¬ 
trol of them. The vote which a city casts is so heavy as to 
throw great power into the hands of those who control it, and 
enable them to drive a good bargain with the wirepullers of 
a legislative chamber. Hence the control exercised by the 
State legislature over city government is a most important 
branch of legislative business, a means of power to scheming 
politicians, of enrichment to greedy ones, and if not of praise 
to evil-doers, yet certainly of terror to them that do well. 1 

We are now in a position, having seen what the main busi¬ 
ness of a State legislature is, to inquire what is likely to be the 
quality of the persons who compose it. The conditions that 
determine their quality may be said to be the following : — 

I. The system of selection by party conventions. As this 
will be described in subsequent chapters (Part III.), I will 
here say no more than that it prevents the entrance of good 
men and favours that of bad ones. 

II. The habit of choosing none but a resident to represent 
an electoral district, a habit which narrows the field of choice, 
and not only excludes competent men from other parts of the 
State, but deters able men generally from entering State poli¬ 
tics, since he who loses his seat for his own district cannot find 
his way back to the legislature as member for any other. 

III. The fact that the capital of a State — i.e. the meeting- 
place of the legislature and residence of the chief officials, is 
usually a small town, at a distance from the most populous 
city or cities of the State, and therefore a place neither attrac¬ 
tive socially nor convenient for business men or lawyers, and 
which, it may be remarked in passing, is more shielded from 
a vigilant public opinion than is a great city, with its keen 
and curious press. Pennsylvanians who might be willing to 
serve in a legislature meeting at Philadelphia are less inclined 
to attend one at Harrisburg. An eminent citizen of Connecti¬ 
cut observed to me that, whereas everybody in that little,, 

1 This is one reason why in some States the reformers have obtained per¬ 
mission for cities to make their own charters. 



544 


THE STATE GOVERNMENTS 


PART n 


State could reach Hartford in a few hours from its farthest 
corner, a member attending the legislature of Illinois or Wis¬ 
consin might often have to quit his home and live during the 
session at Springfield or Madison, because these capitals are 
remote from the outer parts of those large commonwealths. 
He thought this a factor in the comparative excellence of the 
Connecticut legislature. 

IV. The nature of the business that comes before a State 
legislature. As already explained, by far the largest part of 
this business excites little popular interest and involves no large 
political issues. 1 Unimportant it is not. Nothing could well 
be more important than to repress special legislation, and de¬ 
liver cities from the fangs of the spoiler. But its importance 
is not readily apprehended by ordinary people, the mischiefs 
that have to be checked being spread out over a multitude of 
bills, most of them individually insignificant, however ruinous 
in their cumulated potency. Hence, though a public spirited or 
ambitious youth may enter a State legislature in order to become 
known there and work his way upward, a leading politician 
seldom troubles himself to seek a seat, while the men who com¬ 
bine high character with talent and energy are too much occupied 
in practising their profession or pushing their business to under¬ 
take the dreary task of wrangling over gas and railroad bills in 
committees, or exerting themselves to win some advantage for the 
locality that returns them. 

I have not mentioned among these depressing conditions the 
payment of salaries to members, because it makes little difference. 
It is no doubt an attraction to some of the poorer men, to penuri¬ 
ous farmers, or half-starved lawyers. But in attracting them it 
does not serve to keep out any better men. Probably the sense 
of public duty would be keener if legislative work was not paid 
at all. But, looking at the question practically, I doubt whether 
the discontinuance of salaries would improve the quality of 
American legislators. The drawbacks to the position which repel 

1 Recently steps have been taken in some few States to improve the quality 
of legislation by providing legal aid for members in the drafting of bills and 
supplying them with information. Wisconsin in its State Library department 
has set an excellent example in the West, and while the New York State Library 
does admirable work in collecting data for legislation, lawyers are retained to da 
drafting for any member desiring it, and the skilled administrative departments 
give advice and criticism to those who need it, they are of course at the service 
of the Governor. Commissions are pretty frequently appointed to investigate 
and report upon questions of especial difficulty. 



CHAP. XLIV THE WORKING OF STATE GOVERNMENTS 545 


the best men, the advantages which attract inferior men, would 
remain the same as now ; and there is nothing absurd in the view 
that the places of those who might cease to come if they did not 
get their five dollars a day would be taken by men who would 
manage to make as large an income in a less respectable way. 

After this, it need scarcely be said that the State legislatures 
are not high-toned bodies. The best seem to be those of some 
of the New England States, particularly Massachusetts, where 
the venerable traditions surrounding an ancient commonwealth 
do something, though not enough, to sustain the dignity of the 
body and induce good men to enter it. This legislature, called 
the General Court, is, according to the best authorities, substan¬ 
tially pure, and does its work passably well. Its composition is, 
however, said to be inferior to that of the General Courts of 
eighty years ago. Connecticut has a fair Senate, and a tolerable 
House of Representatives. It is also reported to be reasonably 
honest, though not free from demagogism. Vermont is pure; 
New Hampshire, a State where bossism throve and constit¬ 
uencies used to be reproached with bribery, is more open to 
censure. 1 Next come some of the North-Western States, where 
the population consisting almost entirely of farmers, who own 
as well as work their land, sends up members who fairly repre¬ 
sent its average intelligence, and are little below the level of 
its average virtue. There are no traditions in such States, and 
there are already corporations rich enough to corrupt members 
and be themselves black-mailed. Hence one is prepared to find 
among the legislators professional politicians of the worst class. 
But the percentage of such men is small in States like Michigan, 
Iowa, Minnesota, Wisconsin, Oregon, probably not more than 
from five to fifteen per cent, the other members being often 
ignorant and narrow, but honest and well-intentioned. In 
Ohio and Indiana the proportion of black sheep may be higher, 
and in some Western States, such as Missouri and Montana, 
there have now and then been grave scandals. 

It is hard to present a general view of the Southern States, 
both because there are great differences among them, and be¬ 
cause they are still in a state of transition, generally, it would 
seem, transition towards a better state of things. Roughly 
speaking, their legislatures stand below those of the North-West,. 

1 A lively picture of Boss methods as formerly practised in this State may be 
found in a story called “Coniston,” by Mr. Winston Churchill. 

2 N 



546 


THE STATE GOVERNMENTS 


PART II 


though in most a few men of exceptional ability and standing may 
be found. Kentucky and Georgia are among the better States, 
Mississippi and Arkansas are reported as among the less pure. 
Louisiana, infected by New Orleans, has been deemed the worst. 

The lowest place belongs to the States which, possessing the 
largest cities, have received the largest influx of European 
immigrants, and have fallen most completely under the control 
of unscrupulous party managers. New York, Philadelphia, 
Baltimore, Chicago, Cincinnati, San Francisco, have done their 
best to poison the legislatures of the States in which they 
respectively lie by filling these bodies with members of a low 
type, as well as by being themselves the centres of enormous 
accumulations of capital. They have brought the strongest 
corrupting force into contact with the weakest and most cor¬ 
ruptible material; and there has followed in Pennsylvania and 
New York such a Witches’ Sabbath of jobbing, bribing, thiev¬ 
ing, and prostitution of legislative power to private interest as 
the world has seldom seen. Of course even in these States the 
majority of the members are not bad men, for the majority 
come from the rural districts or smaller towns, where honesty 
and order reign as they do generally in Northern and Western 
America outside a few large cities. Many of them are farmers 
or small lawyers, who go up meaning to do right, but fall into 
the hands of schemers who abuse their inexperience and prac¬ 
tise on their ignorance. One of the ablest and most vivacious 
of the younger generation of American politicians 1 says : 

“Where a number of men, many of them poor, some of them unscru¬ 
pulous, and others elected by constituents too ignorant to hold them to a 
proper accountability for their actions, are put into a position of great 
temporary power, where they are called to take action upon questions 
affecting the welfare of large corporations and wealthy private individ¬ 
uals, the chances for corruption are always great; and that there is 
much viciousness and political dishonesty, much moral cowardice, and a 
good deal of actual bribe-taking at Albany, no one who has had practical 
experience of legislation can doubt. At the same time, I think the good 
members outnumber the bad. . . . The representatives from the 
country districts are usually good men, well-to-do farmers, small law¬ 
yers, or prosperous storekeepers, and are shrewd, quiet, and honest. 
They are often narrow-minded, and slow to receive an idea ; but they 
cling to it with the utmost tenacity. For the most part they are native 


1 Mr. Theodore Roosevelt of New York, in the Century Magazine for April 
1885. [This passage was written in 1888.] 




CHAP, xliv THE WORKING OF STATE GOVERNMENTS 547 


Americans, and those who are not are men who have become completely 
Americanized in their ways and habits of thought. . . . The worst 
legislators come from the great cities. They are usually foreigners of 
little or no education, with exceedingly misty ideas as to morality, and 
possessed of an ignorance so profound that it could only be called comic 
were it not for the fact that it has at times such serious effects on our 
laws. It is their ignorance quite as much as actual viciousness which 
makes it so difficult to procure the passage of good laws, or to prevent 
the passage of bad ones ; and it is the most irritating of the many ele¬ 
ments with which we have to contend in the fight for good government.” 1 

The same writer goes on to sa}^ that after sitting in three 
New York legislatures he came to think that about one-third 
of the members were open to corrupt influences, but that although 
the characters of those men were known to their colleagues and 
to the “lobby,” it was rarely possible to convict them. Many 
of this worst third had not gone into the legislature meaning to 
make gain out of the position, but had been corrupted by it. 
They found that no distinction was to be won there by legitimate 
methods, and when temptation came in their way they fell, 
having feeble consciences and no statesmanlike knowledge. Or 
they were anxious above all things to pass some local measure on 
which their constituents were set, and they found they could not 
win the support of other members except by becoming accom¬ 
plices in the jobs or “steals” which these members were “put¬ 
ting through.” Or they gained their seat by the help of some 
influential man or powerful company, and found themselves 
obliged to vote according to the commands of their “owner.” 2 

1 Any one with experience of legislative bodies will agree with the view that 
ignorance and stupidity cause more trouble than bad intentions, seeing that they 
are more common, and are the materials on which men of bad intentions play. 

2 “There came before a committee (of the New York House) of which I hap¬ 
pened to be a member, a perfectly proper bill in the interest of a certain cor¬ 
poration ; the majority of the committee, six in number, were thoroughly bad 
men, who opposed with the hope of being paid to cease their opposition. When 
I consented to take charge of the bill, I stipulated that not a penny should be 
paid to ensure its passage. It therefore became necessary to see what pressure 
could be brought to bear on the recalcitrant members ; and accordingly we had 
to find out who were the authors and sponsors of their political being. Three 
proved to be under the control of local statesmen of the same party as them¬ 
selves, and of equally bad moral character; one was ruled by a politician of 
unsavoury reputation from a different city ; the fifth, a Democrat, was owned 
by a Republican (!) Federal official, and the sixth by the president of a horse-car 
[street tramway] company. A couple of letters from these two magnates forced, 
the last-mentioned members to change front on the bill with surprising alacrity.” 
— Mr. Theodore Roosevelt, ut supra. 

The New York legislature was thought to have begun to improve in the first 
years of the century, but this pleasing impression received a shock in 1910. 



548 


THE STATE GOVERNMENTS 


PART II 


The corrupt member has several methods of making gains. 
One, the most obvious, is to exact money or money’s worth for 
his vote. A second is to secure by it the support of a group 
of his colleagues in some other measure in which he is person¬ 
ally interested, as for instance a measure which will add to the 
value of land near a particular city. This is “log-rolling,” 
and is the most difficult method to deal with, because its milder 
forms are scarcely distinguishable from that legitimate give and 
take which must go on in all legislative bodies. It is, how¬ 
ever, deemed so mischievous, that several Constitutions have 
expressly enacted that it shall be held to constitute the offence 
of solicitation or bribery, and be punishable accordingly. 1 
A third is black-mailing. A member brings in a bill either 
specially directed against some particular great corporation, 
probably a railway, or proposing so to alter the general law as 
in fact to injure such a corporation, or a group of corporations. 
He intimates privately that he is willing to “see” the directors 
or the law-agents of the corporation, and is in many cases bought 
off by them, keeping his bill in the paper till the last moment 
so as to prevent some other member from repeating the trick. 
Even in the North-Western States there is usually a group of 
such “scallawag” members, who, finding the $300 they receive 
insufficient, increase their legislative income by levying this form 
of taxation upon the companies of the State. Nor is the device 
(technically called a “strike”) quite unknown in New England, 
where a ten hours’ labour bill, for instance, has frequently been 
brought in to frighten the large corporations and other capitalists 
into inducing its author to drop it, the inducements being such 
as capitalists can best apply. Every considerable railway keeps 
an agent or agents continually on the spot while a State legisla¬ 
ture is in session, watching the bills brought in and the commit¬ 
tees that deal with them. Such an agent sometimes relies on 
the friends of the railway to defeat these bills, and uses the usual 
expedients for creating friends. But it is often cheaper and easier 
to square the assailant. 2 Of course the committees are the focus 

1 E.g. North Dakota, Montana, Idaho, and Wyoming. 

2 The president of a Western railroad, an upright as well as able man, told 
me that he was obliged to keep constant guard at the capital of the State in 
which the line lay, while the legislature was sitting, and to use every means to 
defeat bills aimed at the railway, because otherwise the shareholders would have 
been ruined. He deplored the necessity. It was a State of comparatively 
good tone, but there was such a prejudice against railroads among the farming 
population, that mischievous bills had a chance of success, and therefore des¬ 
perate remedies were needed. 



chap. XLIV THE WORKING OF STATE GOVERNMENTS 549 


of intrigue, and the chairmanship of a committee the position 
which affords the greatest facilities for an unscrupulous man. 
Round the committees there buzzes that swarm of professional 
agents which Americans call “the lobby/’ soliciting the members, 
threatening them with trouble in their constituencies, plying 
them with all sorts of inducements, treating them to dinners, 
drinks, and cigars. 1 

In these demoralized States the State Senate is apt to be a 
worse body than the House, whereas in the better States the 
Senate is usually the superior body. 2 The reason is two-fold. 
As the Senate is smaller — in New York it consists of 51 members 
against 150 in the Assembly — the vote of each member is of 
more consequence, and fetches, when venal, a higher price. 
Other things being equal, a stronger temptation is more likely 
to overcome virtue, and other things practically are equal, be¬ 
cause it is just as hard to fix responsibility on a senator as on an 
Assemblyman, and the post is no more dignified. And the 
second reason is that the most adroit and practised intriguers 
work their way up into the Senate, where their power (which 
includes the confirmation of appointments) is greater and their 
vote more valuable. There is a survival of the fittest, but as 
fitness includes the absence of scruples, this comes in practice 
to mean the natural selection of the worst. 

I escape from this Stygian pool to make some observations 
which seem applicable to State legislatures generally, and not 
merely to the most degraded. 

The spirit of localism, surprisingly strong everywhere in 
America, completely rules them. A member is not a member 
for his State, chosen by a district but bound to think first of the 
general welfare of the commonwealth. He is a member for 
Brownsville, or Pompey, or the Seventh district, and so forth, 
as the case may be. His first and main duty is to get the most 

1 “One senator, who was generally known as ‘the wicked Gibbs,’ spent two 
years at Albany, in which he pursued his ‘business’ so shamelessly that his 
constituents refused to send him there again ; but he coolly came out a year 
later and begged for a return to the Assembly on the ground that he was finan¬ 
cially embarrassed, and wished to go to the Assembly in order to retrieve his 
fortunes on the salary of an Assembly-man, which is $1500 ! ’’ — Mr. J. B. Bishop 
of New York, in a paper entitled Money in City Elections, p. 6. 

2 Some of my informants would not admit this ; and some fixed the percent-^ 
age of corrupt men, even at Albany, lower than Mr. Roosevelt does. Writers 
of the pessimistic school make it even higher. I give here and elsewhere what 
seem to be on the whole the best supported views, though, as Herodotus says 
about the legend of Cyrus, “knowing three other paths of story also.’’ 



550 


THE STATE GOVERNMENTS 


PART II 


he can for his constituency out of the State treasury, or by means 
of State legislation. No appeal to the general interest would 
have weight with him against the interests of that spot. What 
is more, he is deemed by his colleagues of the same party to be 
the sole exponent of the wishes of the spot, and solely entitled 
to handle its affairs. If he approves a bill which affects the place 
and nothing but the place, that is conclusive. Nobody else 
has any business to interfere. This rule is the more readily 
accepted, because its application all round serves the private 
interest of every member alike, while members of more enlarged 
views, who ought to champion the interests of the State and 
sound general principles of legislation, are rare. When such is 
the accepted doctrine as well as invariable practice, log-rolling 
becomes natural and almost legitimate. Each member being 
the judge of the measure which touches his own constituency, 
every other member supports that member in passing the meas¬ 
ure, expecting in return the like support in a like cause. He who 
in the public interest opposes the bad bill of another, is certain 
to find that other opposing, and probably with success, his own 
bill however good. 

The defects noted (Chapters XIV.-XVII.) as arising in 
Congress from the want of recognised leadership and of per¬ 
sons officially bound to represent and protect the interests of 
the people at large reappear in the State legislatures, on a smaller 
scale, no doubt, but in an aggravated form, because the level 
of ability is lower and the control of public opinion less. There 
is no one to withstand the petty localism already referred to; 
no one charged with the duty of resisting proposals which some 
noisy section may demand, but whose ultimate mischief, or 
pernicious effect as precedents, thoughtful men perceive. 
There are members for districts, but no members for the people 
of the State. Thus many needless bills and many bad bills 
are passed. And when some difficult question arises, it may 
happen that no member is found able to grapple with it. Some¬ 
times the governor comes to the rescue by appointing a com¬ 
mission of eminent men to devise and suggest to the legislature 
a measure to deal with the question. Sometimes the Consti¬ 
tution contains a provision that the judges shall report upon 
all defects in the judicial system in order that the needed reform 
may be thereupon carried. 1 Such are the roundabout ways in 

1 In a Western state it recently happened that the most experienced judge 
had agreed upon certain much needed reforms in judicial procedure and caused 



CHAP, xliv THE WORKING OF STATE GOVERNMENTS 551 


which efforts are made to supply the want of capacity in the 
legislators, and the absence of a proper system of co-operation 
between the executive and legislative departments. 

A remarkable and important new departure was made in 
New York State in 1909 by the creation of a body called the 
Public Utilities Commission charged with the duty of dealing 
with the agencies of transportation and other public services. 
Its action is expected to remedy the evils which have arisen not 
only from the frequent exercise of improper influences by public 
service corporations, but also from the fragmentary and unsys¬ 
tematic way in which legislatures have treated these matters. 

There is in State legislators, particularly in the West, a 
restlessness which, coupled with their limited range of knowl¬ 
edge and undue appreciation of material interests, makes them 
rather dangerous. Meeting for only a few weeks in the year, or 
probably in two years, they are alarmingly active during those 
weeks, and run measures through whose results are not appre¬ 
hended till months afterwards. It is for this reason, no less 
than from the fear of jobbery, that the meeting of the legis¬ 
lature is looked forward to with anxiety by the “good citizens” 
in these communities, and its departure hailed as a deliverance. 
I once asked the governor of a far Western commonwealth 
how he got on with his legislature. “I won't say they are 
bad men,” he answered, “but the pleasantest sight of the year 
to me is when at the end of the session I see their coat tails go 
round the street corner.” 

Both this restlessness and the general character of State 
legislation are illustrated by the enormous numbers of bills in¬ 
troduced in each session. Comparatively few pass, because 
the time is too short, or opposing influences can be brought to 
bear on the committees : yet those that do pass reach a high 
total. 

The annual output of all the legislatures has been estimated at 
15,000 statutes. 1 From 1899 to 1904, the number passed was 
45,552. In 1909 there were passed in Maryland 741 acts, in 

a bill to be introduced into the legislature embodying them. There were, how¬ 
ever, many lawyers of the meaner sort in that legislature who objected to these 
reforms because they would have lessened opportunities of gain: and by the 
efforts of these petty practitioners the bill was defeated. There was no one in 
the Chamber able with official authority to insist that in the interests of the 
people at large the bill ought to pass. 

1 By Professor Gilmore of the University of Wisconsin. 



m 


THE STATE GOVERNMENTS 


PART II 


California 729, in Pennsylvania 650, in New York 596, and in 
North Carolina 1319. The large majority of these were local or 
special, intended to further the interests of particular persons 
or places. 1 In 1901 eight fairly typical States passed 7032 
statutes, of which 5876 were local or special. Acts of incorpo¬ 
ration, grants of inheritance, changes of names and releases 
from indebtedness, thus consume a large proportion of the time 
of the legislature at a great public expense, and often to the 
serious detriment of public interests, because it is through 
these bills that jobs are perpetrated. The expense to which the 
States are put by their legislatures, with results rather injurious 
than beneficial, is very great. Some years ago it was estimated 
that the cost of laws in the States varied from an average of 
about $1000 per diem for every legislative session to over $4000 
per diem, making an aggregate, in the whole number of States, 
which could not be less than $10,000,000, not as an excep¬ 
tional outlay, but as the price paid for current legislation. 

Nothing is more remarkable about these State legislators 
than their timidity. No one seems to think of having an 
opinion of his own. In matters which touch the interests of 
his constituents, a member is, of course, their humble servant. 
In burning party questions — they are few, and mostly personal 
— he goes with his party. In questions of general public 
policy he looks to see how the cat jumps; and is ready to vote 
for anything which the people, or any active section of the 
people, cry out for, though of course he may be secretly un¬ 
friendly, and may therefore slyly try to spoil a measure. This 
want of independence has some good results. It enables a 
small minority of zealous men, backed by a few newspapers, 
to carry schemes of reform which the majority regard with 
indifference or hostility. Thus in bodies so depraved as the leg¬ 
islatures of New York and Pennsylvania, bills have been passed 
improving the charters of cities, creating a secret ballot, and 
even bettering the civil service and establishing an improved 
system of appointments to office. A few energetic reformers 
went to Albany and Harrisburg to strengthen the hands of the 

1 Even among the Acts which appear in the statute-books of the States 
under the heading of general laws, there are many of a local or special character. 
Some States ( e.g . Wyoming) now forbid the passing of any private Act. 

As remarked in an earlier chapter, the total number of bills of all kinds in¬ 
troduced in 1908 into the British Parliament, which is the sole legislative au¬ 
thority for a population of forty-three millions, was 482, of which 241 passed. 



CHAP, xliv THE WORKING OF STATE GOVERNMENTS 553 


little knot of members who battle for good government there, 
and partly frightened, partly coaxed a majority of the Senate 
and House into adopting proposals opposed to the interests of 
professional politicians. About 1880, two or three high-minded 
and sagacious ladies obtained by their presence at Albany the 
introduction of reforms into the charitable institutions of New 
York city. The ignorance and heedlessness of the u profes¬ 
sionals/ ? who do not always see the results of legislative changes, 
and do not look forward beyond the next few months, help to 
make such triumphs possible; and thus, as the Bible tells us 
that the wrath of man shall praise God, the faults of politicians 
are turned to work for righteousness. 

In the recent legislation of many States, especially West¬ 
ern States, there is a singular mixture of philanthropy and 
humanitarianism with the folly and jobbery I have described, 
like threads of gold and silver woven across a warp of dirty 
sacking. Every year sees bills passed to restrict the sale of 
liquor, to prevent the sale of indecent or otherwise demoraliz¬ 
ing literature, to protect women and children, to stamp out 
lotteries and gambling houses, to improve the care of the blind, 
the insane, and the poor, which testify to a warm and increasing 
interest in all good works. These measures are to be explained, 
not merely by that power which an active and compact minority 
enjoys of getting its own way against a crowd of men bent each 
on his own private gain, and therefore not working together 
for other purposes, but also by the real sympathy which many 
of the legislators, especially in the rural districts, feel for morality 
and for suffering. Even the corrupt politicians of Albany were 
moved by the appeals of the philanthropic ladies to whom I 
have referred ; much more then would it be an error to think of 
the average legislator as a bad man, merely because he will 
join in a job, or try to blackmail a railroad. The moral stand¬ 
ard of Western America is not quite the same as that of Eng¬ 
land, just as the standard of England differs from that of Ger¬ 
many or France. It is both higher and lower. Some sins excite 
more anger or disgust than they do in England ; some are more 
lightly forgiven, or more quickly forgotten. Laxity in the dis¬ 
charge of a political trust belongs to the latter category. The 
newspapers accuse everybody; the ordinary citizen can seldom * 
tell who is innocent and who is guilty. He makes a sort of com¬ 
promise in his own mind by thinking nobody quite black, but 



554 


THE STATE GOVERNMENTS 


PART I 


everybody gray. And he goes on to think that what every¬ 
body does cannot be very sinful. 

[Note to edition of 1910. — Reviewing the facts dealt with in this 
chapter, I find them to be still, broadly speaking, the same as they 
were in 1892 ; the factors working for good and for evil having not 
greatly changed. However, the tendency of recent years seems to be 
in most States towards better legislation, and especially towards a 
more active and vigilant control of legislative bodies by public opinion. 
The legislature of New York, for instance, is probably no purer than 
formerly, and may do as many jobs at the instance of private interests 
as formerly, but its public acts are better, and it sometimes drops a 
job in deference to the opinion of good citizens. Moreover the legisla¬ 
ture is now in some States curbed by the Referendum. In some of the 
Western and Southern States plenty of crude measures and a few wild 
measures are still passed, and in most States private interests still have 
too much power in securing the legislation they want. But there has 
been enough progress to make the outlook hopeful. What seems now 
most needed is the separation of private ( i.e . local and personal) bills 
from general public legislation, and the provision of some mode for 
dealing with them on general principles and, if possible, by quasi ju¬ 
dicial methods. The New York Public Utilities Commission is an ex¬ 
periment in this direction from which much may be hoped. But any 
one who knows how useful the quasi judicial methods applied in Eng¬ 
land to private legislation have proved cannot but wish that they were 
better known in the American States.] 

[Note to edition of 1914. — Upon the subject mentioned in the last 
preceding sentence I may refer to an address delivered by me to the 
New York State Bar Association published in a volume entitled 
Addresses, University and Historical, in 1913. The upward tendency 
referred to in the preceding note seems to be maintained.] 


\ 



CHAPTER XLV 


.REMEDIES FOR THE FAULTS OF STATE GOVERNMENTS 

The defects in State governments, which our examination 
of their working has disclosed, are not those we should have 
expected. It might have been predicted, and it was at one 
time believed, that these authorities, consumed by jealousy and 
stimulated by ambition, would have been engaged in constant 
efforts to extend the sphere of their action and encroach on 
the National government. This does not happen, and seems 
most unlikely to happen. The people of each State are now not 
more attached to the government of their own commonwealth 
than to the Federal government of the nation, whose growth has 
made even the greatest State seem insignificant beside it. 

A study of the frame of State government, in which the 
executive department is absolutely severed from the legisla¬ 
tive, might have suggested that the former would become too 
independent, misusing its powers for personal or party pur¬ 
poses, while public business would suffer from the want of con¬ 
cert between the two great authorities, that which makes and 
that which carries out the law. 

This also has proved in practice to be no serious evil. The 
legislature might indeed and probably would work better if the 
governor, or some high official acting with and for him, could 
sit in it and exercise an influence on its deliberations. Such an 
approach to the European cabinet system has, however, never 
been thought of for American States; and the example of the 
Provincial legislatures of Canada, in each of which there is a re¬ 
sponsible ministry sitting in the legislature, does not seem to 
have recommended it for imitation. Those who founded the 
State governments did not desire to place any executive leader 
in a representative assembly. Probably they were rather in¬ 
clined to fear that the governor, not being accountable to the 
legislature, would retain too great an independence. The recent 
creation of various administrative officers or Boards has gone 

555 


556 


THE STATE GOVERNMENTS 


PART II 


some way to meet the difficulties which the incompetence of the 
legislatures causes, for these officers or Boards frequently pre¬ 
pare bills which some member of the legislature introduces, and 
which are put through without opposition, perhaps even without 
notice, except from a handful of members. On the whole, the 
executive arrangements of the State work well, though they 
might, in the opinion of some judicious publicists, be improved 
by vesting the appointment of the chief officials in the governor, 
instead of leaving it to direct popular election. This would 
tend to give more unity of purpose and action to the admin¬ 
istration. The collisions which occur in practice between the 
governor and the legislature relate chiefly to appointments, 
that is to say, to personal matters, not involving issues of State 
policy. 

The real blemishes in the system of State government are all 
found in the composition or conduct of the legislatures. They 
are the following : — 

Inferiority, as respects knowledge, skill, and sometimes also 
conscience, of the bulk of the men who fill these bodies. 

Improvidence in matters of finance. 

Heedlessness in passing administrative bills. 

Want of proper methods for dealing with local and special 
bills. 

Failure of public opinion adequately to control legislation, 
and particularly local and special bills. 

The practical result of these blemishes has been to create a 
large mass of State and local indebtedness which ought never 
to have been incurred, to allow foolish experiments in law¬ 
making to be tried, and to sanction a vast mass of private en¬ 
terprises, in which public rights and public interests become the 
sport of speculators, or a source of gain to monopolists, with 
the incidental consequence of demoralizing the legislators 
themselves and creating an often unjust prejudice against all 
corporate undertakings. 

What are the checks or remedies which have been provided 
to limit or suppress these evils? Any one who has followed 
the account given of the men who compose the legislatures and 
the methods they follow will have felt that these checks must 
be considerable, else the results would have been worse than 



CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


557 


those we see. All remedies are directed against the legislative 
power, and may be arranged under four heads. 

First, there is the division of the legislature into two houses. 
A job may have been smuggled through one house, but the 
money needed to push it through the other may be wanting. 
Some wild scheme, professing to benefit the farmers, or the 
cattlemen, or the railroad employes, may, during its passage 
through the Assembly, arouse enough attention from sensible 
people to enable them to stop it in the Senate. The mere ten¬ 
dency of two chambers to disagree with one another is deemed 
a benefit by those who hold, as the Americans do, that every 
new measure is prima facie likely to do more harm than good. 
Most bills are bad — ergo, kill as many as you can. Each 
house, moreover, has, even in such demoralized State legislatures 
as those of New York or Pennsylvania, a satisfaction, if not 
an interest, in unveiling the tricks of the other. 

Secondly, there is the veto of the governor. How much the 
Americans value this appears from the fact that, whereas in 
1789 there was only one State, Massachusetts, which vested 
this power in the chief magistrate, all of the now existing States 
except one give it to him. Some constitutions (including all 
the new ones) contain the salutary provision that the governor 
may reject one or more items of an appropriation bill (some¬ 
times even of any bill) while approving the bill as a whole ; 
and this has been found to strengthen his hands immensely 
in checking the waste of public money on bad enterprises. 
This veto power, the great stand-by of the people of the States, 
illustrates admirably the merits of concentrated responsibility. 
The citizens, in choosing the governor to represent the collective 
authority of the whole State, lay on him the duty of examining 
every bill on its merits. He cannot shelter himself behind the 
will of the representatives of the people, because he is appointed 
to watch and check those representatives as a policeman watches 
a suspect. He is bound to reject the bill, not only if it seems to 
him to infringe the Constitution of the State, but also if he thinks 
it in any wise injurious to the public, on pain of being himself 
suspected of carelessness, perhaps of complicity in some corrupt 
design. The legislature may, of course, pass the bill over his 
veto by a two-thirds vote ; but although there may exist a two- , 
thirds majority in favour of the measure, they may fear, after the 
veto has turned the lamp of public opinion upon it, to take so 



558 


THE STATE GOVERNMENTS 


PART II 


strong a step. There are, of course, great differences between 
one governor and another, as well as between one State and 
another, as regards the honesty with which the power is exer¬ 
cised, for it may be, and sometimes is, used by a “ Ring” governor 
to defeat measures of reform. But it is a real and effective 
power everywhere ; and in the greatest States, where the impor¬ 
tance of the office sometimes secures the election of an able and 
courageous man, it has done excellent service . 1 

Thirdly, there are limitations imposed on the competence of 
the legislature. I have already mentioned some of these limi¬ 
tations, the most numerous, and at present the most important 
of which relate to special and local (or what would be called 
in England “private”) bills. These bills, while they destroy 
the harmony and simplicity of the law, and consume the time 
of the legislature, are also so fertile a source of jobbery 2 that 
to expunge them or restrict them to cases where a special statute 
was really needed, would be a great benefit. The constitutional 
prohibitions described effect this to some extent. Illinois, for 

1 Although the existence of this ultimate remedy tends to make good mem¬ 
bers relax their opposition to bad bills, because they know that the veto will 
kill them, this is a less evil than the disuse of the veto would be. 

2 “ In twelve States the legislature is forbidden to create any corporation 
whatever, municipalities included, except by general law, and in thirteen others 
to create by special Act any except municipal corporations, or those to which 
no other law is applicable. In some States corporations can be created by 
special Act only for municipal, charitable, or reformatory purposes. Such 
provisions are not intended to discourage the formation of private corpora¬ 
tions. On the contrary, in all these States general laws exist under which they 
can be formed with great facility. Indeed the defects in some of these statutes, 
and their failure to provide safeguards against some at least of the very evils 
which they were intended to meet, might well suggest to legislators the ques¬ 
tion whether in avoiding the Scylla of special legislation they have not been 
drawn into the Charybdis of franchises indiscriminately bestowed. Perhaps 
the time will come when recommendations such as those urged by the New 
York railroad commission will be acted on, and the promoters of a new rail¬ 
road will be obliged to furnish some better reason for its existence, and for 
their exercising the sovereign power of eminent domain, than the chance of 
forcing a company already established to buy them out — or, failing that, the 
alternative of being sold out under foreclosure, pending a receivership.” — 
Hitchcock, State Constitutions, p. 36. Prohibitions have become more stringent 
since the above was written. 

‘‘A great field for favouritism and jobbery exists, when special Acts of in¬ 
corporation are required for each case in which special favours and special 
privileges may be given away by a legislature that may be corruptly influenced, 
without imposing any reciprocal obligation on the corporation. Fully two- 
thirds of the lobbyism, jobbery, and log-rolling, the fraud and trickery that are 
common to our State legislatures, is due to this power of creating private cor¬ 
porations.” — Ford, Citizens' Manual, ii. p. 68. 



chap, xlv REMEDIES FOR THEIR FAULTS 


559 


instance, by such prohibitions reduced her sessional statutes 
to about 300 pages, and Iowa brought down her average to 
200-250 pages, whereas the Wisconsin statutes of 1885 reached 
2000 pages, there being then in that State far less effective restric¬ 
tions. But the powers of evil do not yield without a battle. 
All sorts of evasions are tried, and some succeed. For instance, 
there was a prohibition in the Constitution of New York to pass 
any but general laws relating to the government of cities. An 
Act was passed expressed to apply to cities with a popu¬ 
lation exceeding one hundred thousand, but less than two 
hundred thousand. There happened to be then only one such 
city in the State, viz. Buffalo, but as there might be more, the law 
was deemed general, and escaped the prohibition. So the Con¬ 
stitution of Ohio expressly provides that the legislature “ shall 
pass no special act conferring corporate powers.” But in 1890 
nearly fifty such acts were passed, the provision being evaded by 
the use of general enacting words which can in fact apply only 
to one place. One act, for instance, authorized villages with a 
population of not less than 1903 nor more than 1912 to issue 
bonds for natural gas developments; another empowered any 
city having a population of 15,435, by the census of 1890, to 
levy a library tax. 1 

Provisions against special legislation are also evaded in another 
way, viz. by passing Acts which, because they purport to amend 
general Acts, are themselves deemed general. Here is a recent 
instance. The Constitution of New York prohibits the legisla¬ 
ture from passing any private or local Act incorporating villages, 
or providing for building bridges. A general Act was passed 
in 1885 for the incorporation of villages, with general provisions 
as to bridges. Next year the following Act was passed, which I 
give verbatim. It amends the Act of 1885, by taking out of it 
all the counties in the State except Westchester, and then excludes 
the application of the Act to two towns in Westchester. It is 
thus doubly a “private or local Act,” but the prohibition of the 
Constitution was “ got round.” 2 


1 Mr. Hitchcock (from whose address I take the Ohio instance) adds that the 
Supreme Court of Ohio has held such evasions unconstitutional, but that they 
continue notwithstanding, the legislature, and the villages or cities, taking their 
chance. 

2 The Constitution of North Dakota (§ 70) expressly prohibits this evasion. 




560 


THE STATE GOVERNMENTS 


PART II 


CHAP. 556. 


AN ACT to amend chapter two hundred and ninety-one of the laws 
of eighteen hundred and seventy, entitled “ An Act for the Incorpora¬ 
tion of Villages.” 

Passed June 4, 1886 ; three-fifths being present. 
The People of the State of New York, represented 
in Senate and Assembly, do enact as follows : — 
Section 1. — Section two of chapter four hun¬ 
dred and fifty of the laws of eighteen hundred and 
eighty-five, is hereby amended so as to read as 
follows : — 

Section 2. — All of the counties in this State 
are hereby exempted from the provisions of this 
Act except the county of Westchester, but noth¬ 
ing in this Act contained shall be construed so as 
to apply to the towns of Greenburgh and Mount 
Pleasant in said county of Westchester. 

Section 3. — This Act shall take effect imme¬ 
diately. 


Village Incorporation 
Act of 1885, as to 
bridges, to apply 
only to part of 
Westchester County. 


Where evasions of this kind become frequent the confusion 
of the statute-book is worse than ever, because you cannot tell 
without examination whether an Act is general or special. 

The reader will have noticed in the heading of the Act just 
quoted the words “three-fifths being present.” This is one 
of the numerous safeguards imposed on the procedure of the 
State legislatures. Others have been specified in Chapter XL. 
Their abundance in the newest Constitutions shows how these 


efforts to deal with the symptoms have failed to eradicate the 
disease, and their increasing minuteness bears witness to the 
endless evasions they seek to anticipate . 1 


1 For instance, it is sometimes provided that no bill shall be introduced within 
a certain period after the beginning or before the end of the session, so as to 
prevent bills from being smuggled through in the last days. This provision is 
evaded “ by introducing a new bill after the time has expired when it may con¬ 
stitutionally be done, as an amendment to some pending bill, the whole of 
which, except the enacting clause, is struck out to make way for it. Thus, the 
member who thinks he may have occasion for the introduction of a new bill 
after the constitutional period has expired, takes care to introduce sham bills 
in due season, which he can use as stocks to graft upon, and which he uses 
irrespective of their character or contents. The sham bill is perhaps a bill to 
incorporate the city of Siam. One of the member’s constituents applies to 
him for legislative permission to construct a dam across the Wild Cat River. 
Forthwith, by amendment, the bill, entitled a bill to incorporate the city of 
Siam, has all after the enacting clause stricken out, and it is made to provide, 
as its sole object, that John Doe may construct a dam across the Wild Cat. With 
this title, and in this form it is passed; but the house then considerately amends 
the title to correspond with the purpose of the bill, and the law is passed, and the 
Constitution at the same time saved ! ” — Cooley, Constit. Limit, p. 169 note. 




CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


561 


The inventive genius of American legislators finds or makes 
many holes in the net which the people have tried to throw over 
them by the Constitution. Yet, though there be none of the 
restrictions mentioned which is not sometimes violated or evaded, 
they have, on the whole, worked well. The enemy is held 
at bay, and a great deal of bad legislation is prevented. Some 
bills have to be dropped, because too plainly repugnant to the 
Constitution to be worth carrying farther. The more ignorant 
members do not always apprehend where the difficulty lies. 
They can barely read the Constitution, and the nature of its 
legal operation is as far beyond them as the cause of thunder is 
beyond cats. A friend of mine who sat for some years in the 
New York Assembly was once importuned by an Irish member 
to support that particular member’s little bill. He answered 
that he could not, because the bill was against the Constitution. 
“Och, Mr. Robert,” was the reply, “sfiure the Constitootion 
should niver be allowed to come between frinds.” 

Some bills again the governor can scarcely help vetoing, 
because they violate a Constitutional . restriction; while of 
those that pass him unscathed, a fair number fall victims to the 
courts of law. It may be added that the enforcement of the 
limitations imposed by a State Constitution necessarily rests 
with the judges, since it is they who pronounce, if and when the 
point is brought up in a suit between parties, whether or no a 
statute has transgressed the bounds which the fundamental 
instrument sets, or whether a Constitutional amendment has 
been duly carried . 1 

Some one may remark that there are two material differences 
between the position of these State judges and that of the Federal 

1 A remarkable instance of the technical literalism with which the courts 
sometimes enforce Constitutional restrictions is afforded by the fate of a recent 
liquor Prohibition amendment to the Constitution of Iowa. This amendment 
had been passed by both Houses of the State legislature in two successive 
legislatures, had been submitted to the people and enacted by a large majority, 
had been proclaimed by the governor and gone into force. It was subsequently 
discovered that one House of the first legislature had, through the carelessness 
of a clerk, neglected to “ spread the Amendment, in full on its journal,” as 
prescribed by the Constitution. The point being brought before the Supreme 
Court of Iowa, it was held that the Amendment, owing to this informality, 
had not been duly passed, and was wholly void. 

An illustration of the range which the action of courts may take in enforc¬ 
ing Constitutional safeguards was well given by the Supreme Court of Wiscon¬ 
sin, when it held invalid a [gerrymandering] re-districting of the State (for elec¬ 
tions to the State legislature), as being inconsistent with the provision of the 
Constitution that districts should be reasonably equal. 

2 o 





562 


THE STATE GOVERNMENTS 


PART II 


judges. The latter are not appointed by a State, and are there¬ 
fore in a more independent position when any question of con¬ 
flict between State laws or Constitutions and the Federal Con¬ 
stitution or statutes comes before them. Moreover they hold 
office for life, whereas the State judge usually holds for a term of 
years, and has his re-election to think of. Can the State judge 
then be expected to show himself equally bold in declaring a 
State statute to be unconstitutional? Will he not offend the 
legislature, and the party managers who control it, by flying in 
their faces ? 

The answer is that although the judge may displease the 
legislature if he decides against the validity of an unconstitu¬ 
tional statute, he may displease the people if he decides for it; 
and it is safer to please the people than the legislature. The 
people at large may know little about the matter, but the legal 
profession know, and are sure to express their opinion. The 
profession look to the courts to save them and their clients from 
the heedlessness or improbity of the legislature, and will condemn 
a judge who fails in this duty. Accordingly, the judges seldom 
fail. They knock about State statutes most unceremoniously, 
and they seldom suffer for doing so. In one case only is 
their position a dangerous one. When the people, possessed 
by some strong desire or sentiment, have either by the provisions 
of a new Constitution, or by the force of clamour, driven the 
legislature to enact some measure meant to cure a pressing ill, 
they may turn angrily upon the judge who holds that measure to 
have been unconstitutional. This has several times happened, 
and is always liable to happen where elective judges hold office 
for short terms, with the unfortunate result of weakening the 
fortitude of the judges. In 1786 the supreme court of Rhode 
Island decided that an Act passed by the legislature was invalid, 
because contravening the provisions of the Colonial Charter 
(which was then still the Constitution of the State), securing to 
every accused person the benefit of trial by jury. 1 

The legislature were furious, and summoned the judges to ap- 

1 See p. 250, ante. The act was one for forcing State paper money into cir¬ 
culation by imposing a penalty, recoverable on summary conviction without 
a jury, on whoever should refuse to receive on the same terms as specie the 
bills of a State-chartered bank. No question of the United States Constitu¬ 
tion could arise, because it did not yet exist. To these Rhode Island judges 
belongs the credit not only of having resisted an excited multitude, but of hav¬ 
ing set one of the first examples in American history of the exercise of a salutary 
function. Their decision was that they had no jurisdiction. 



CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


563 


pear before them and explain the grounds of their decision. The 
attempt to dismiss them failed, but the judges were not re^ 
elected by the legislature when their term of office expired at 
the end of the year. In Ohio, the legislature passed in 1805 an 
Act which Judge Pease, in a case arising under it, held to be 
repugnant to the Constitution of Ohio, as well as to the Federal 
Constitution, and accordingly declined to enforce. In 1808, 
he and another judge of the supreme court of the State who had 
concurred with him, were impeached by the House before the 
Senate of Ohio, but were acquitted. In 1823, the supreme court 
of Kentucky held invalid a Debtors’ Relief act passed by the 
legislature on the ground that it violated the obligation of con¬ 
tracts clause of the Federal Constitution by making paper issued 
by a State bank legal tender. The judges were impeached, but 
a two-thirds majority for conviction could not be obtained, so 
the angry legislature extinguished the court itself and created 
a new court of Appeals, to which the governor appointed new 
men as judges. The old court, however, held its ground, insist¬ 
ing that the new court was unconstitutional, and after a passionate 
struggle, a new legislature repealed in 1825 the act creating the 
new court. So justice and reason prevailed. In 1871, the legis¬ 
lature of Illinois passed a law, intending to carry out a provision 
of the Constitution of 1870, which was held unconstitutional 
by Judge Lawrence, greatly to the disappointment of the 
farmers, who had expected valuable results from it. He was 
not impeached, but when shortly afterwards he sought re-election, 
he was defeated solely on the ground of this decision. 1 These 

1 1 quote from Mr. Hadley’s book on railroad transportation (through Dr. 
Hitchcock’s essay already referred to) the following account of the circum¬ 
stances : — “ The Constitutional Convention of Illinois in 1870 made an impor¬ 
tant declaration concerning State control of railway rates, on the basis of which 
a law was passed in 1871 establishing a system of maxima. This law wa,s pro¬ 
nounced unconstitutional by Judge Lawrence. The result w r as that he imme¬ 
diately afterwards failed of re-election, solely on this ground. The defeat of 
Judge Lawrence showed the true significance of the farmers’ movement [the 
so-called Granger movement]. They were concerned in securing what they 
felt to be their rights, and were unwilling that any constitutional barrier should 
be made to defeat the popular will. They had reached the point where they 
regarded many of the forms of law as mere technicalities. They were danger¬ 
ously near the point where revolutions begin. But they did not pass the point. 
The law of 1873 avoided the issue raised by Judge Lawrence against that of 
1871. Instead of directly fixing maxima, it provided that rates must be reason¬ 
able, and then provided for a commission to fix reasonable rates. The courage 
of Judge Lawrence was not therefore thrown away ; it cost him his place, but 
it served the people and vindicated the law. 

In 1890, the executive committee of the Minnesota Farmers Alliance in 



564 


THE STATE GOVERNMENTS 


PART 11 


instances show that the courts have had to fight for their freedom 
in the discharge of the duty which the Constitutions throw on 
them. But the paucity of such conflicts shows that this freedom 
is now generally recognized, and may be deemed, at least for the 
present, to be placed above the storms of popular passion. 1 

It will be seen from what has been said that the judges are 
an essential part of the machinery of State government. But 
they are so simply as judges, and not as invested with political 
powers or duties. They have not received, any more than the 
Federal judges, a special commission to restrain the legislature 
or pronounce on the validity of its acts. There is not a word 
in the State Constitutions, any more than in the Federal Con¬ 
stitution, conferring any such right upon the courts, or indeed 
conferring any other right than all courts of law must neces¬ 
sarily enjoy. When they declare a statute unconstitutional 
they do so merely in their ordinary function of expounding the 
law of the State, its fundamental law as well as its laws of 
inferior authority, just as an English judge might hold an order 
made by the King in Council to be invalid, because in excess of 
the powers granted by the Act of Parliament under which it was 
made. It would be as clearly the duty of an English county 
court judge so to hold as of the highest court of appeal. So 
it is the duty of the humblest American State judge to decide 
on the constitutionality of a statute. 

So far we have been considering restrictions imposed on the 
competence of the legislature, or on the methods of its procedure. 
We now come to the fourth and last of the checks which the 
prudence of American States imposes. It is a very simple, not 
to say naive, one. It consists in limiting the time during which 
the legislature may sit. Formerly these bodies sat, like the Eng¬ 
lish Parliament, so long as they had business to do. The busi¬ 
ness seldom took long. When it was done, the farmers and law¬ 


passing resolutions demanding the abolition of the Federal Supreme Court, 
which had recently held that the State legislature had no power to fix railroad 
freight rates, relieved their feelings by saying, “We call attention to the fact 
that the citizens of England, from whom we have largely derived our form of 
government, would not permit for one instant a bench of judges to nullify an 
Act of Parliament. There the people are properly omnipotent. ... In our 
anxiety to protect the rights of property we have created a machine that threatens 
to destroy the rights of man.” 

1 There have of course been other instances in which judges have been im¬ 
peached or removed; but I am here dealing only with those in which the ground 
of complaint was th£ declaring a legislative act to be invalid. 



CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


565 


yers naturally wished to go home, and home they went. But 
when the class of professional politicians grew up, these whole¬ 
some tendencies lost their power over a section of the members. 
Politics was their business, and they had none other to call 
them back to the domestic hearth. 1 They had even a motive for 
prolonging the session, because they prolonged their legislative 
salary, which was usually paid by the day. Thus it became the 
interest of the taxpayer to shorten the session : and he had 
already a still stronger interest in cutting short the jobs and im¬ 
provident bestowal of moneys and franchises on which he found 
his representatives employed. Accordingly most States have 
fixed a number of days beyond which the legislature may not sit. 
Many of these fix it absolutely; but a few prefer the method 
of cutting off the pay of their legislators after the prescribed 
number of days has expired, so that if they do continue to devote 
themselves still longer to the work of law-making, their virtue 
shall be its own reward. 2 Experience has, however, disclosed 
a danger in these absolutely limited sessions. It is that of 
haste and recklessness in rushing bills through without due 
discussion. Sometimes it happens that a bill introduced in 
response to a vehement popular demand is carried with a rush 
(so to speak), because the time for considering it cannot be 
extended, whereas longer consideration would have disclosed its 
dangers. An ill-framed railway bill was thus defeated in the 
Iowa legislature because full discussion (there being no time¬ 
limit) brought out its weak points. Hence some States have 
largely extended their sessions. Thus California in 1907 abol¬ 
ished the provision which limited payment to a regular session 
of sixty days, substituting a general limit of SI000 to each 
member whatever the length of the session ; and Colorado in 
1885 extended the maximum of her session from 40 to 90 days, 
also raising legislative pay from $4 to 17 per diem. 

1 The English Parliament found the tendency of members to slip away so 
strong that in the sixteenth century it enacted “that no knight of the shire or 
burgess do depart before the end of Parliament,” and inflicted on the member 
leaving without the permission of Mr. Speaker, the penalty of losing “all those 
sums of money which he should or ought to have had for his wages.” 

2 Thus the Constitution of Oregon, for instance, pays its members for forty 
days only. Texas is a little more liberal, for her Constitution was content to 
reduce the pay after sixty days from $5 to $3 (now $2) per day, at which re¬ 
duced rate members might apparently go on as long as they please. Nearly all 
the States which fix a limit of time are Southern or Western. The forty days’ 
session of Georgia may be extended by a two-thirds vote of an absolute ma¬ 
jority of each House. 



566 


THE STATE GOVERNMENTS 


PART II 


Many recent Constitutions have tried another and probably 
a better expedient. They have made sessions less frequent. 
At one time every legislature met once a year. Now in all 
the States but six it is permitted to meet only once in two years 
or (in Alabama and Mississippi) once in four years. 1 It does not 
appear that the interests of the commonwealths suffer by this 
suspension of the action of their chief organ of government. 2 
On the contrary, they get on so much better without a legis¬ 
lature that certain bold spirits ask whether the principle ought 
not to be pushed farther. As Mr. Butler said in 1886 — and the 
statement remains substantially true — 

“ For a people claiming pre-eminence in the sphere of popular govern¬ 
ment, it seems hardly creditable that in their seeming despair of a cure 
for the chronic evils of legislation, they should be able to mitigate them 
only by making them intermittent. Under the biennial system the relief 
enjoyed in what are called the ‘off-years’ seems to have reconciled the 
body politic of the several States which have adopted it to the risk of an 
aggravation of the malady when the legislative year comes round and 
the old symptoms recur. 

“ The secretaries of State (of the several States) with whom I have 
communicated concur in certifying that no public inconvenience is caused 
by the biennial system; and one of them, of the State of Nebraska, in 
answer to my query if biennial sessions occasion any public inconvenience, 
writes ‘None whatever. The public interests would be better subserved 
by having legislative sessions held only once in four years.’ ” 

The Americans seem to reason thus: “Since a legislature is 
very far gone from righteousness, and of its own nature in¬ 
clined to do evil, the less chance it has of doing evil the better. 
If it meets, it will pass bad laws. Let us therefore prevent it 
from meeting.” 

They are no doubt right as practical men. They are con¬ 
sistent, as sons of the Puritans, in their application of the doc¬ 
trine of original sin. But this is a rather pitiful result for self- 
governing democracy to have arrived at. 

“ Is there not,” some one may ask, “ a simpler remedy ? Why 
all these efforts to deal with the various symptoms of the malady, 
instead of striking at the root of the malady itself ? Why not 

1 The six are Massachusetts, New Jersey, New York, Rhode Island, South 
Carolina, Georgia, — all original States. Where the meetings are biennial or 
quadrennial, the legislature by adjourning sometimes gives itself a second session. 

2 The members, however, being usually new to the work, are rawer and 
positively more dangerous when their term includes only one session than 
they are during the second session in those States which allow two. 



CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


567 


reform the legislatures by inducing good men to enter them, 
and keeping a more constantly vigilant public opinion fixed upon 
them?” 

The answer to this very pertinent question will be found in 
the chapters of Part III. which follow. I will only so far antici¬ 
pate what is there stated as to observe that the better citizens 
have found it so difficult and troublesome to reform the legis¬ 
latures that they have concluded to be content with curing such 
and so many symptoms as they can find medicines for, and 
waiting to see in what new direction the virus will work. “ After 
all,” they say, “the disease, though it is painful and vexing, does 
not endanger the life of the patient, does not even diminish his 
strength. The worst that the legislatures can do is to waste 
some money, and try some foolish experiments from which the 
good sense of the people will presently withdraw. Every one 
has his crosses to bear, and ours are comparatively light.” 
All which is true enough, but ignores two important features 
in the situation, one, that the constitutional organs of govern¬ 
ment become constantly more discredited, the other that 
the tremendous influence exerted by wealth and the misuse of 
public rights permitted to capitalists, and especially to incor¬ 
porated companies, have created among the masses of the 
people ideas which may break out in demands for legislation 
of a new and dangerous kind. 

The survey of the State governments which we have now 
completed suggests several reflections. 

One of these is that the political importance of the States 
is no longer what it was in the early days of the Republic. 
Although the States have grown enormously in wealth and 
population, they have declined relatively to the central gov¬ 
ernment. The excellence of State laws and the merits of a 
State administration still make a great difference to the inhabit¬ 
ants, but the more thorough consolidation of the country and 
the fact that some of the most important questions, such as those 
relating to Trusts and to railroads, are questions in which 
the hand of the National government is felt, dispose people to 
look rather to the latter. The matters which the State deals 
with, largely as they influence the welfare of the citizen, do 
not touch his imagination like those which Congress handles, 
because the latter determine the relations of the Republic to 
the rest of the world, and affect all the area that lies between 



568 


THE STATE GOVERNMENTS 


PART II 


the two oceans. The State set out as an isolated and self- 
sufficing commonwealth. It is now merely a part of a far 
grander whole, which seems to be slowly absorbing its functions 
and stunting its growth, as the great tree stunts the shrubs over 
which its spreading boughs have begun to cast their shade. 

I do not mean to say that the people have ceased to care for 
their States; far from it. They are proud of their States, 
be there much or be there little to be proud of. That passion¬ 
ate love of competition which possesses English-speaking men, 
makes them eager that their State should surpass the neigh¬ 
bouring States in the number of the clocks it makes, the hogs it 
kills, the pumpkins it rears, that their particular star should 
shine at least as brightly as the other forty-seven in the national 
flag. But if these commonwealths meant to their citizens what 
they did in the days of the Revolution, if they commanded an 
equal measure of their loyalty, and influenced as largely their 
individual welfare, the State legislatures would not be left 
to professionals or third-rate men. The truth is that the State 
has shrivelled up. It retains its old legal powers over the citizens, 
its old legal rights as against the central government. It still 
displays its peculiar patriotism at every public celebration, 
and recalls its historic heroes. In Virginia and Massachusetts, 
for instance, in Vermont and Kentucky, and again in such a 
great Western State as California, there is plenty of State 
pride. But it does not interest its citizens as it once did. 
Men do not now say, like Ames in 1782, that their State is 
their country. 1 And as the central government overshadows 
it in one direction, so the great cities have encroached upon it 
in another. The population of a single city is sometimes a 
fourth or a fifth part of the whole population of the State; 
and. city questions interest this population more than State 
questions do ; city officials have begun to rival or even to dwarf 
State officials. 

Observe, however, that while the growth of the Union has 
relatively dwarfed the State, the absolute increase of the State 
in population has changed the character of the State itself. 
In 1790 seven of the thirteen original States had each of them 
less than 300,000, only one more than 500,000 inhabitants. 

1 So even in 1811, Josiah Quincy said in Congress : “Sir, I confess it, the 
first public love of my heart is the Commonwealth of Massachusetts. There 
is my fireside ; there are the tombs of my ancestors.” 



CHAP. XLV 


REMEDIES FOR THEIR FAULTS 


569 


Now thirty-one have more than 1,000,000 each, twenty have 
more than 2,000,000, and ten of these have more than 2,500,000. 
Hence, in spite of railroads and telegraphs, the individual citi¬ 
zens know less of one another, have less personal acquaintance 
with their leading men, and less personal interest in the affairs 
of the community than in the old days when the State was no 
more populous than an English county like Bedford or Somer¬ 
set. Thus the special advantages of local government have to 
a large extent vanished from the American States of to-day. 
They are local bodies in the sense of having no great imperial 
interests to fire men’s minds. They are not local in the sense 
of giving their members a familiar knowledge and a lively in¬ 
terest in the management of their affairs. Hamilton may have 
been right in thinking that the large States ought to be sub¬ 
divided. 1 At any rate it is to this want of direct local interest 
on the part of the people, that some of the faults of their legis¬ 
latures may be ascribed. 

The chief lesson which a study of the more vicious among 
the State legislatures teaches, is that power does not necessa¬ 
rily bring responsibility in its train. I should be ashamed to 
write down so bald a platitude, were it not one of those plati¬ 
tudes which are constantly forgotten or ignored. People who 
know well enough that, in private life, wealth or rank or any 
other kind of power is as likely to mar a man as to make him, 
to lower as to raise his sense of duty, have nevertheless con¬ 
tracted the habit of talking as if human nature changed when 
it entered public fife, as if the mere possession of public func¬ 
tions, whether of voting or of legislating, tended of itself to 
secure their proper exercise. We know that power does not 
purify men in despotic governments, but we talk as if it did 
so in free governments. Every one would of course admit, if 
the point were put flatly to him, that power alone is not enough, 

1 It is, however, also argued that there are some large States in which the 
mischievous action of the multitude of a great city is held in check by the 
steadier rural voters. If such States had been subdivided, the subdivision 
which happened to contain the great city would lie at the mercy of this multi¬ 
tude. The question has not taken practical shape, for no State has asked to be 
divided, though there was once a movement to divide Kansas into two States 
by a N. and S. line, and some Southern Californians have talked of seceding. 

Texas is the only State which possesses (under the statute admitting her) 
a right to divide herself into several States without obtaining permission from 
Congress. She is big enough for four or five. 

Hamilton’s reason seems to have been a fear that the States would be too 
strong for the National government. 



570 


THE STATE GOVERNMENTS 


PART II 


but that there must be added to power, in the case of the voter, 
a direct interest in the choice of good men; in the case of the 
legislator, responsibility to the voters; in the case of both, a 
measure of enlightenment and honour. What the legislatures of 
the worst States show is not merely the need for the existence of 
a sound public opinion, for such a public opinion exists, but the 
need for methods by which it can be brought into efficient action 
upon representatives, who, if they are left to themselves, and 
are not individually persons with a sense of honour and a char¬ 
acter to lose, will be at least as bad in public life as they could be 
in private. The greatness of the scale on which they act, and 
of the material interests they control, will do little to inspire 
them. New York and Pennsylvania are by far the largest and 
wealthiest States in the Union. Their legislatures are confessedly 
among the worst. 



CHAPTER XLVT 

STATE POLITICS" 

In the last preceding chapters I have attempted to describe 
first the structure of the machinery of State governments, and 
then this machinery in motion as well as at rest, — that is to 
say, the actual working of the various departments in their 
relations to one another. We may now ask, What is the mo¬ 
tive power which sets and keeps these wheels and pistons going ? 
Where is the steam that drives the machine ? 

The steam is supplied by the political parties. In speaking 
of the parties I must, to some slight extent, anticipate what 
will be more fully explained in Part III. : but it seems worth 
while to incur this inconvenience for the sake of bringing to¬ 
gether all that refers specially to the States, and of completing 
the picture of their political life. 1 

The States evidently present some singular conditions for 
the development of a party system. They are self-governing 
communities with large legislative and administrative powers, 
existing inside a much greater community of which they are 
for many purposes independent. They must have parties, and 
this community, the Federal Union, has also parties. What is 
the relation of the one set of parties to the other ? 

There are three kinds of relations possible, viz. : — 

Each State might have a party of its own, entirely uncon¬ 
nected with the national parties, but created by State issues — 
i.e. advocating or opposing measures which fall within the ex¬ 
clusive competence of the State. 

Each State might have parties which, while based upon State 
issues, were influenced by the national parties, and in some sort 
of affiliation with the latter. 

The parties in each State might be merely local subdivisions 

1 Many readers may find it better to skip this chapter until they have read 
those which follow (Chapters LIII.-LVI.) upon the history, tenets, and present 
condition of the great national parties. 

571 


572 


THE STATE GOVERNMENTS 


PART II 


of the national parties, the national issues and organizations 
swallowing up, or rather pushing aside, the State issues and 
the organizations formed to deal with them. 

The nature of the State governments would lead us to expect 
to find the first of these relations existing. The sphere of the 
State is different, some few topics of concurrent jurisdiction 
excepted, from that of the National government. What the 
State can deal with, the National government cannot touch. 
What the National government can deal with lies beyond the 
province of the State. 1 The State governor and legislature are 
elected without relation to the President and Congress, and 
when elected have nothing to do with those authorities. Hence 
a question fit to be debated and voted upon in Congress can 
seldom be a question fit to be also debated and voted upon in a 
State legislature, and the party formed for advocating its pas¬ 
sage through Congress will have no scope for similar action within 
a State, while on the other hand a State party, seeking to carry 
some State law, will have no motive for approaching Congress, 
which can neither help it nor hurt it. The great questions 
which have divided the Union since its foundation, and on 
which national parties have been based, have been questions 
of foreign policy, of the creation of a national bank, of a pro¬ 
tective tariff, of the extension of slavery, of the reconstruction 
of the South after the war. With none of these had a State 
legislature any title to deal: all lay within the Federal sphere. 
So the questions of currency and tariff reform, which towards the 
close of the nineteenth century came to be among the most 
important questions before the country, were outside the province 
of the State governments. We might therefore expect that 
the State parties would be as distinct from the national parties 
as are the State governments from the Federal. 

The contrary has happened. The national parties have en¬ 
gulfed the State parties. The latter have disappeared abso¬ 
lutely as independent bodies, and survive merely as branches 
of the national parties, working each in its own State for the tenets 
and purposes which a national party professes and seeks to at¬ 
tain. So much is this the case that one may say that a State 
party has rarely (save to some extent in the South) any marked 

1 Some topics, such as legislation relating to railways and to corporations 
generally, lie partly in one sphere, partly in the other, and much inconvenience 
has thence resulted. See Chap. XXIX. supra. 



CHAP. XLVI 


STATE POLITICS 


573 


local colour, that it is seldom, and then but slightly, the result of 
a compromise between State issues and national issues, such as 
I have indicated in suggesting the second form of possible rela¬ 
tion. The national issues have thrown matters of State com¬ 
petence entirely into the shade, and have done so almost from 
the foundation of the Republic. The local parties which existed 
in 1789 in most or all of the States were soon absorbed into the 
Federalists and Democratic Republicans who sprang into life 
after the adoption of the Federal Constitution. 

The results of this phenomenon have been so important that 
we may stop to examine its causes. 

Within four years from their origin, the strife of the two great 
national parties became intense over the whole Union. From 
1793 till 1815 grave issues of foreign policy, complicated with 
issues of domestic policy, stirred men to fierce passion and 
strenuous effort. State business, being more commonplace, ex¬ 
citing less feeling, awakening no interest outside State bounda¬ 
ries, fell into the background. The leaders who won fame and 
followers were national leaders; and a leader came to care for 
his influence within his State chiefly as a means of gaining 
strength in the wider national field. Even so restlessly active 
and versatile a people as the Americans cannot feel warmly 
about two sets of diverse interests at the same time, cannot 
create and work simultaneously two distinct and unconnected 
party organizations. The State, therefore, had, to use the 
transatlantic phrase, “to take the back seat.” Before 1815 
the process was complete; the dividing lines between parties 
in every State were those drawn by national questions. And 
from 1827 down to the end of the century the renewed keenness 
of party warfare kept these parties constantly on the stretch, and 
forced them to use all the support they could win in a State for 
the purposes of the national struggle. 

There was one way in which predominance in a State could 
be so directly used. The Federal senators are chosen by the 
State legislatures. The party therefore which gains a majority 
in the State legislature gains two seats in the smaller and more 
powerful branch of Congress. As parties in Congress are gen¬ 
erally pretty equally balanced, this advantage is well worth 
fighting for, and is a constant spur to the efforts of national 
politicians to carry the State elections in a particular State. 
Besides, in America, above all countries, nothing succeeds like 



574 


THE STATE GOVERNMENTS 


PART II 


success; and in each State the party which carries the State 
elections is held likely to carry the elections for the national 
House of Representatives, and for the President also. 

Moreover, there are the offices. The Federal offices in each 
State are very numerous. They are in the gift of whichever 
national party happens to be in power, i.e. counts among its 
members the President for the time being. He bestows them 
upon those who in each State have worked hardest for the 
national party there. Thus the influence of Washington and 
its presiding deities is everywhere felt, and even the party 
which is in a minority in a particular State, and therefore loses 
its share of the State offices, may be cheered and fed by morsels of 
patronage from the national table. The national parties are in 
fact all-pervasive, and leave little room for the growth of any 
other groupings or organizations. A purely State party, indif¬ 
ferent to national issues, would, if it were started now, have no 
support from outside, would have few posts to bestow, because 
the State offices are neither numerous nor well paid, could have 
no pledge of permanence such as the vast mechanism of the 
national parties provides, would offer little prospect of aiding 
its leaders to win wealth or fame in the wider theatre of 
Congress. 

Accordingly the national parties have complete possession 
of the field. In every State from Maine to Texas all State 
elections for the governorship and other offices are fought on 
their lines; all State legislatures are divided into members 
belonging to one or other of them. Every trial of strength in 
a State election is assumed to presage a similar result in a 
national election. Every State office is deemed as fitting a 
reward for services to the national party as for services in 
State contests. In fact the whole machinery is worked exactly 
as if the State were merely a subdivision of the Union for elec¬ 
toral purposes. Yet nearly all the questions which come before 
State legislatures have nothing whatever to do with the tenets 
of the national parties, while votes of State legislatures, except 
in respect of the choice of senators, can neither advance nor 
retard the progress of any cause which lies within the competence 
of Congress. 

How has this system affected the working of the State govern¬ 
ments, and especially of their legislatures ? 

It has prevented the growth within a State of State parties 



CHAP. XLVI 


STATE POLITICS 


575 


addressing themselves to the questions which belong to its legis¬ 
lature, and really affect its welfare. 

The natural source of a party is a common belief, a common 
aim and purpose. For this men league themselves together 
and agree to act in concert. A State party ought therefore to 
be formed out of persons who desire the State to do something, 
or not to do it; to pass such and such a law, to grant money to 
such and such an object. It is, however, formed with reference 
to no such aim or purpose, but to matters which the State can¬ 
not influence. Hence a singular unreality in the State parties. 
In most of the legislatures as well as through the electoral 
districts they cohere very closely. But this cohesion is of no 
service or significance for nine-tenths of the questions that 
come before the legislature for its decision, seeing that such 
questions are not touched by the platform of either party. 
Party, therefore, does not fulfil its legitimate ends. It does not 
produce the co-operation of leaders in preparing, of followers in 
supporting, a measure or line of policy. It does not secure the 
keen criticism by either side of the measures or policy advo¬ 
cated by the other. It is an artificial aggregation of persons 
linked together for purposes unconnected with the work they 
have to do. 

This state of things may seem to possess the advantage of 
permitting questions to be considered on their merits, apart 
from that spirit of faction which in England, for instance, dis¬ 
poses the men on one side to reject a proposal of the other side 
on the score, not of its demerits, but of the quarter it proceeds 
from. Such an advantage would certainly exist if members 
were elected to the State legislatures irrespective of party, if 
the practice was to look out for good men who would manage 
State business prudently and pass useful laws. This, however, 
is not the practice. The strength of the national parties prevents 
it. Every member is elected as a party man; and the experi¬ 
ment of legislatures working without parties has as little chance 
of being tried in the several States as in Congress itself. There 
is yet another benefit which the plan seems to promise. The 
State legislatures may seem a narrow sphere for an enterprising 
genius, and their work uninteresting to a superior mind. But 
if they lead into the larger field of national politics, if distinction 
in them opens the door to a fame and power extending over the 
country, able men will seek to enter and to shine in the legis- 



576 


THE STATE GOVERNMENTS 


PART II 


latures of the States. This is the same argument as is used by 
those who defend the practice, now general in England, of fight¬ 
ing municipal and other local elections on party lines. Better 
men, it is said, are glad to enter the town councils than could 
otherwise be induced to do so, because in doing so they serve 
the party, and establish a claim on it; they commend themselves 
to their fellow-citizens as fit candidates for Parliament. The 
possible loss of not getting a good set of town councillors irre¬ 
spective of party lines is thought to be more than compensated 
by the certain gain of men whose ambition would overlook a town 
council, were it not thus made a stage in their political career. 
This case is the more like that of America because these English 
municipal bodies have rarely anything to do with the issues which 
divide the two great English parties. Men are elected to them 
as Tories or Liberals whose Toryism or Liberalism is utterly 
indifferent so far as the business of the council goes. 

Whether or no this reasoning be sound as regards England, 
I doubt if the American legislatures gain in efficiency by having 
only party men in them, and whether the elections would be any 
worse cared for if party was a secondary idea in the voters’ 
minds. Already these elections are entirely in the hands of 
party managers, to whom intellect and knowledge do not com¬ 
mend an aspirant, any more than does character. Experience 
in a State legislature certainly gives a politician good chances of 
seeing behind the scenes, and makes him familiar with the meth¬ 
ods employed by professionals. But it affords few opportu¬ 
nities for distinction in the higher walks of public life, and it is 
as likely to lower as to raise his aptitude for them. However, a 
good many men find their way into Congress through the State 
legislatures—though it is no longer the rule that persons chosen 
Federal senators by those bodies must have served in them — 
and perhaps the average capacity of members is kept up by the 
presence of persons who seek to use the State legislature as a 
stepping-stone to something further. The question is purely 
speculative. Party has dominated and will dominate all State 
elections. Under existing conditions the thing cannot be other¬ 
wise. 

It is, however, obviously impossible to treat as party matters 
many of the questions that come before the legislatures. Local 
and personal bills, which, it will be remembered, occupy by far 
the larger part of the time and labours of these bodies, do not 



CHAP. XLVI 


STATE POLITICS 


577 


fall within party lines at all. The only difference the party 
system makes to them is that a party leader who takes up such 
a bill has exceptional facilities for putting it through, and that a 
district which returns a member belonging to the majority has 
some advantage when trying to secure a benefit for itself. It 
is the same with appropriations of State funds to any local pur¬ 
pose. Members use their party influence and party affiliation ; 
but the advocacy of such schemes and opposition to them have 
comparatively little to do with party divisions, and it constantly 
happens that men of both parties are found combining to 
carry some project by which they or their constituents will gain. 
Of course the less reputable a member is, the more apt will he 
be to enter into “rings” which have nothing to do with politics 
in their proper sense, the more ready to scheme with any trickster, 
to whichever party he adheres. Of measures belonging to what 
may be called genuine legislation, i.e. measures for improving the 
general law and administration of the State, some are so remote 
from any party issue, and so unlikely to enure to the credit of 
either party, that they are considered on their merits. A bill, 
for instance, for improving the State lunatic asylums, or forbid¬ 
ding lotteries, or restricting the freedom of divorce, would 
have nothing either to hope or to fear from party action. It 
would be introduced by some member who desired reform for 
its own sake, and would be passed if this member, having con¬ 
vinced the more enlightened among his colleagues that it would 
do good, or his colleagues generally that the people wished it, 
could overcome the difficulties which the pressure of a crowd of 
competing bills is sure to place in its way. Other public meas¬ 
ures, however, may excite popular feeling, may be demanded by 
one class or section of opinion and resisted by another. Bills 
dealing with the sale of intoxicants, or regulating the hours of 
labour, or attacking railway companies, or prohibiting the sale 
of oleomargarine as butter, are matters of such keen interest 
to some one section of the population, that a party will gain 
support from many citizens by espousing them, and may pos¬ 
sibly estrange others. Hence, though such bills have rarely 
any connection with the tenets of either party, it is worth the 
while of a party to win votes by throwing its weight for or against 
them, according as it judges that there is more to gain by taking 
the one course or the other. In the case of oleomargarine, for 
instance, there was clearly more to be gained by supporting than 
2p 



578 


THE STATE GOVERNMENTS 


PART II 


by opposing, because the farmers, especially in the agricultural 
North-West, constitute a much stronger vote than any persons 
who could suffer by restricting the sale of the substance. We 
should accordingly expect to find, and observers did in fact 
find, both parties competing for the honour of passing such a bill. 
There was a race between a number of members, anxious to 
gain credit for themselves and their friends. Intoxicants open 
up a more difficult problem. Strong as the Prohibitionists and 
local option men are in all the northern and western, and, 
recently, in the southern States also, the Germans, not to speak 
of the Irish and the liquor dealers, are in some States also so 
strong, and so fond of their beer, that it is a hazardous thing for 
a party to hoist the anti-liquor flag. Accordingly both parties 
have been apt to fence with this question. Speaking broadly, 
therefore, these questions of general State legislation are not 
party questions, though liable at any moment to become so, 
if one or other party takes them up. 

Is there then no such thing as a real State party, agitating 
or working solely within State limits, and inscribing on its 
banner a principle or project which State legislation can 
advance ? 

Such a party does sometimes arise. In California, for in¬ 
stance, there grew up in the seventies a strong feeling against 
the Chinese, and a desire to exclude them. Both Republicans 
and Democrats were affected by the feeling, and fell in with it. 
But out of this there sprang up a little later a third party, 
which claimed to be specially “anti-Mongolian,” while also 
attacking capitalists and railways; and it lasted for some time, 
confusing the politics of the State. Questions affecting the canals 
of the State became at one time a powerful factor in the parties 
of New York. In Virginia the question of repudiating the State 
debt gave birth some time after the Civil War to a party which 
called itself the “Readjusters,” and by the help of negro votes 
carried the State at several elections. In some of the North- 
Western States the farmers associated themselves in societies 
called “Granges,” purporting to be formed for the promotion of 
agriculture, and created a Granger party, which secured drastic 
legislation against the railroad companies and other so-called 
monopolists. The same forces acting over a still wider area 
produced more recently the so-called Farmers’ Alliance, which 
figured so prominently in the congressional elections of 1890 , 



CHAP. XLVI 


STATE POLITICS 


579 


and under the name of the People’s Party, in those of 1892. 
And in most States there now exists an active Prohibitionist 
party, which agitates for the strengthening and better enforce¬ 
ment of laws restricting or forbidding the sale of intoxicants. 
It deems itself also a national party, since it has an organization 
which covers a great part of the Union. But its operations are 
far more active in the States, because the liquor traffic belongs to 
State legislation, although the victories recently won for the 
anti-liquor cause have not usually been won by its own direct 
party action, but by the acceptance of the doctrine by one other 
of the regular parties. 1 Since, however, it can rarely secure 
many members in a State legislature, it acts chiefly by 
influencing the existing parties, and frightening them into 
pretending to meet its wishes. 

All these groups or factions were or are associated on the 
basis of some doctrine or practical proposal which they put 
forward. But it sometimes also happens that, without any 
such basis, a party is formed in a State inside one of the regular 
national parties; or, in other words, that the national party in 
the State splits up into two factions, probably more embittered 
against each other than against the other regular party. Such 
State factions, for they hardly deserve to be called parties, 
generally arise from, or soon become coloured by, the rivalries of 
leaders, each of whom draws a certain number of politicians 
with him. New York is the State that has seen most of them ; 
and in it they often tended to grow distinctly personal. The 
Hunkers and Barnburners who divided the Democratic party 
many years ago, and subsequently passed into the “Hards” 
and the “ Softs,” began in genuine differences of opinion 
about canal management and other State questions. 2 The 
“Stalwart” and “Half-breed” sections of the Republican party 
in the same State, whose bitter feuds amused the country 
about 1880, were mere factions, each attached to a leader, or 
group of leaders, but without distinctive principles. Still more 
purely personal were the factions of “Regular” and “Union” 


1 Congress has of course power to impose, and has imposed, an excise upon 
liquor, but this is far from meeting the demands of the temperance party. 

2 The names of these factions, the changes they pass through, and the way 
in which they immediately get involved with the ambitions and antipathies of 
particular leaders, recall the factions in the Italian cities of the thirteenth and 
fourteenth centuries, such as the White and Black Guelfs of Florence in the 
time of Dante. 




580 


THE STATE GOVERNMENTS 


PART n 


Republicans in Delaware, due to the efforts of a single poli¬ 
tician to secure a seat in the United States Senate. 

It will be seen from this fact, as well as from others given 
in the preceding chapter, that the dignity and magnitude of 
State politics have declined. They have become more pacific 
in methods, but less serious and more personal in their aims. 
In old days the State had real political struggles, in which men 
sometimes took up arms. There was a rebellion in Massachu¬ 
setts in 1786-87, which it needed some smart fighting to put down, 
and another in Rhode Island in 1842, due to the discontent of 
the masses with the then existing Constitution. 1 The battles of 
later generations have been fought at the polling-booths, though 
sometimes won in the rooms where the votes were counted by 
partisan officials. That heads are counted instead of being 
broken is no doubt an improvement. But these struggles do 
not always stir the blood of the people as those of the old time 
did : they seem to evoke less patriotic interest in the State, 
less public spirit for securing her good government. 

This change does not necessarily indicate a feebler sense of 
political duty. It is due to that shrivelling up of the State to 
which I referred in last chapter. A century ago the State was 
a commonwealth comparable to an Italian republic like Bologna 
or Siena, or one of the German free imperial cities of the middle 
ages, to Liibeck, for instance, or to Niirnberg, which, though 
it formed part of the Empire, had a genuine and vigorous politi¬ 
cal life of its own, in which the faiths, hopes, passions of the 
citizens were involved. Nowadays the facilities of communi¬ 
cation, the movements of trade, the unprecedented diffusion 
of literature, and, perhaps not least, the dominance of the great 
national parties, whose full tide swells all the creeks and inlets 
of a State no less than the mid channel of national politics at 
Washington, have drawn the minds of the masses as well as of 
the more enlightened citizens away from the State legisla- 


1 In these miniature civil wars there was a tendency for the city folk to be on 
one side and the agriculturists on the other, a phenomenon which was observed 
long ago in Greece, where the aristocratic party lived in the city and the poor 
in the fields. In the sixth century b.c. the oligarchic poet Theognis mourned 
over the degradation of political life which had followed the intrusion of the 
country churls. The hostility of the urban and rural population sometimes 
recurs in Switzerland. The country people of the canton of Basil fought a 
bloody battle some years ago with the people of the city, and the little com¬ 
monwealth had to be subdivided into two, Basil City and Basil Country. 



CHAP. XLVI 


STATE POLITICS 


581 


tures, whose functions have come to seem trivial and their 
strifes petty. 1 

In saying this I do not mean to withdraw or modify what 
was said, in an earlier chapter, of the greatness of an American 
State, and the attachment of its inhabitants to it. Those propo¬ 
sitions are, I believe, true of a State as compared to any local 
division of any European country, the cantons of Switzerland 
excepted. I am here speaking of a State as compared with the 
nation, and of men’s feelings towards their State to-day as com¬ 
pared with the feelings of a century ago. I am, moreover, 
speaking not so much of sentimental loyalty to the State, con¬ 
sidered as a whole, for this is still strong, but of the practical 
interest taken in its government. Even in Great Britain many 
a man is proud of his city, of Edinburgh say, or of Manchester, 
who takes only the slenderest interest in the management of its 
current business. 

There is indeed some resemblance between the attitude of 
the inhabitants of a great English town towards their municipal 
government and that of the people of a State to their State 
government. The proceedings of English town councils are 
little followed or regarded either by the wealthier or the poorer 
residents. The humble voter does not know or care who is 
mayor. The head of a great mercantile house never thinks of 
offering himself for such a post. In London the Metropolitan 
Board of Works raised and spent a vast revenue; but its dis¬ 
cussions were seldom commented on in the newspapers and very 
few persons of good social standing were to be found among its 
members. Even the London County Council attracts less at¬ 
tention than the magnitude of its operations deserves. Allowing 
for the contrast between the English bodies, with their strictly 
limited powers, and the immense competence of an American 
State legislature, this English phenomenon is sufficiently like 
those of America to be worth taking as an illustration. 

We may accordingly say that the average American voter, 
belonging to the labouring or farming or shopkeeping class, 
troubles himself little about the conduct of State business. 

1 Similar feelings made the three last surviving Hanseatic free cities will¬ 
ingly resign their independence to become members of the new German Em¬ 
pire, because the sentiment of pan-Germanic patriotism had so overborne the 
old fondness for local independence, that no regret was felt in resigning part of 
the latter in order to secure a share in the fuller national life of the great Ger¬ 
man State. 



582 


THE STATE GOVERNMENTS 


PART II 


He votes the party ticket at elections as a good party man, and 
is pleased when his party wins. When a question comes up 
which interests him, like that of canal management, or the 
regulation of railway rates, or a limitation of the hours of labour, 
he is eager to use his vote, and watches what passes in the 
legislature. He is sometimes excited over a contest for the 
governorship, and if the candidate of the other party is a stronger 
and more honest man, may possibly desert his party on that one 
issue. But in ordinary times he follows the proceedings of the 
legislature so little that an American humourist, describing 
the initial stages of dotage, observes that the poor old man 
took to filing the reports of the debates in his State legislature. 
The politics which the voter reads by preference are national 
politics; and especially whatever touches the next presidential 
election. In State contests that which chiefly fixes his attention 
is the influence of a State victory on an approaching national 
contest. 

The more educated and thoughtful citizen, especially in great 
States, like New York and Pennsylvania, is apt to be disgusted 
by the sordidness of many State politicians and the pettiness 
of most. He regards Albany and Harrisburg much as he re¬ 
gards a wasps’ nest in one of the trees of his suburban garden. 
The insects eat his fruit, and may sting his children; but it is 
too much trouble to set up a ladder and try to reach them. 
Some public-spirited young men have, however, occasionally 
thrown themselves into the muddy whirlpool of the New York 
legislature, chiefly for the sake of carrying Acts for the better 
government of cities. When the tenacity of such men proves 
equal to their courage, they gain in time the active support of 
those who have hitherto stood aloof, regarding State politics 
as a squabble over offices and jobs. With the help of the press 
they were able to carry measures such as an improved Ballot 
Act, or Civil Service Act, or an Act for checking expenditure 
at elections, reforms not only valuable in their own State but 
setting an example which other States are apt to follow. But 
the prevalence of the rule that a man can be elected only in the 
district where he lives, renders it difficult permanently to main¬ 
tain a reforming party in a legislature, so those who, instead 
of shrugging their shoulders, put them to the wheel, generally 
prefer to carry their energies into the field of national politics, 
thinking that larger and swifter results are to be obtained 



CHAP. XLVI 


STATE POLITICS 


583 


there, because victories achieved in and through the National 
government have an immediate moral influence upon the coun¬ 
try at large. 

A European observer, sympathetic with the aims of the 
reformers, is inclined to think that the battle for honest gov¬ 
ernment ought to be fought everywhere, in State legislatures 
and city councils as well as in the national elections and in the 
press, and is at first surprised that so much effort should be 
needed to secure what all good citizens, to whichever party 
they belong, might be expected to work for. But he would be 
indeed a self-confident European who should fancy he had dis¬ 
covered anything which had not already occurred to his shrewd 
American friends; and the longer such an observer studies the 
problem, the better does he learn to appreciate the difficulties 
which the system of party organization, to be hereafter described, 
throws in the way of all reforming efforts. 



584 


THE STATE GOVERNMENTS 


PART II 


NOTE TO THE EDITION OF 1910 
Recent Tendencies in State Politics 

Upon a review of the last twenty years, I am led to believe that State 
legislatures, which had in most parts of the country lost some of the 
respect formerly entertained for them, have not declined any further 
in intellectual quality, and are on the whole less open to moral cen¬ 
sure than they were in 1888. In some States, especially in the West, 
They are believed to have improved. Nevertheless the disposition of 
the people to distrust them continues. This appears not only in the 
restriction of their powers and the shortening of their sessions but also 
in two other noteworthy forms. 

One is the tendency to turn from the legislature to the Governor 
and encourage him to take the initiative and assert himself as a motive 
power leading the legislature and appealing directly to the people for 
their support. The difficulty of fixing responsibility upon large repre¬ 
sentative bodies seems both in States and in Cities to be inducing the 
people to invest the executive head of the State or City with a discre¬ 
tion wider than would have formerly been allowed to him or than is 
allowed to executive officials in Great Britain. This is now visible not 
so much in the widening of his legal functions (although his power 
of appointing to posts has been in some States extended), as in the 
kind of authority which the Governor is able, when personally capable, 
firm and upright, to exert. 

The other form is the introduction of those highly democratic insti¬ 
tutions, the Referendum and the Initiative. These, though as yet 
established in only a few of the Western States, give evidence of the 
desire which is spreading in the West for the people to take power out 
of the hands of the legislature and wield it themselves. The source of 
this desire probably lies not so much in the eagerness of the masses to 
carry further the principle of popular sovereignty, as in a certain im¬ 
patience with the representative assemblies, which are supposed to be 
too largely the creatures of the party organizations and to be liable to 
yield to the influences which powerful financial interests can bring to 
bear. Such impatience is not always justified, for the masses some¬ 
times expect from legislation benefits which no legislation can give and 
blame their representatives when the fault lies not in the latter but in 
the nature of things. But the people will in trying to do themselves 
the work they desire to have done doubtless come to learn in time how 
much harder that work is than they had believed, and how much more 
skill it needs than either they or their legislators have yet acquired. 




CHAPTER XLVII 


THE TERRITORIES 

The National government has ever since its establishment 
possessed a vast area of land outside the limits of the several 
States, the larger part of which long remained wild, inhabited 
only by Indian tribes. When, with the westward advance of the 
whites,- any particular region became sufficiently settled to re¬ 
quire a regular government and be capable of some form of 
self-government, its boundaries were set, and it was erected 
into what is called a Territory. Most of the States admitted 
subsequently to the original thirteen were for a time Territories, 
and became States when they reached a certain population. 
The process went on till all the Continental area of the United 
States was thus, after passing through the Territorial stage, dis¬ 
tributed into States, and there now remains in that area only 
one region still called a Territory. This is Alaska. Outside 
the Continent there is another Territory, viz. : the Hawaiian 
Islands, of which I shall speak in a later chapter. Besides these 
two regions there is one part of the country which is not a State 
and has no self-governing institutions. The District of Colum¬ 
bia is a piece of land set apart to contain the city of Washington, 
which is the seat of the Federal government. It is governed by 
three commissioners appointed by the President, and has no 
local legislature nor municipal government, the only legislative 
authority being Congress, in which it is not represented. Being 
well administered, it is held up by unfriendly critics of democracy 
as a model of the happy results of an enlightened despotism. 

Alaska (area 590,884 square miles, population in 1910, 64,356, 
of whom half were Indians *) was under the direct authority of 
officers appointed by the President and of laws passed by Con¬ 
gress, until 1912, when Congress provided for a local legislature. 
Its population has grown with the discovery of valuable minerals, 

1 The total number of Indians in the United States (excluding Alaska) was 
returned in 1890 at 248,253, and in 1912 at 327,348. 

585 


586 


THE STATE GOVERNMENTS 


PART II 


but it is hardly likely for a long time to come to receive complete 
self-governing institutions. 

Although the Territorial form of government has now ceased 
on the North American Continent, it seems to deserve some 
description, not only because it still exists in Hawaii, and may 
possibly be applied elsewhere in the dominions of the United 
States, but also because it was so long in force over a vast 
area that some knowledge of it is needed to understand the 
phases through which the country passed. 

Until 1889, the Organized Territories, eight in number, formed 
a broad belt extending from Canada on the north to Mexico 
on the south, and separating the States of the Mississippi 
Valley from those of the Pacific slope. In that year Con¬ 
gress passed Acts under which three of them, Dakota (which 
divided itself into North Dakota and South Dakota), Montana, 
and Washington became entitled to be admitted as States; 
while in 1890 two others (Idaho and Wyoming) were similarly 
permitted to become States. Then the Territory of Utah was 
admitted and became a State (1894). Finally in 1910 an Act 
was passed providing for the admission of Arizona and New 
Mexico so soon as they should give themselves proper con¬ 
stitutions. The Territory of Oklahoma and the region called 
Indian Territory, united to form the State of Oklahoma, were 
admitted in 1907. The Territorial form of government had 
some interesting features, for it differed from that which exists 
in the several States, and was in some points more akin to that 
of the self-governing colonies of Great Britain. This form 
was in each Territory created by Federal statutes, beginning 
with the great Ordinance for the Government of the Territory 
of the United States north-west of the River Ohio, passed by 
the Congress of the Confederation in 1787. Since that year 
different statutes, not always similar in their provisions, were 
enacted for creating particular Territories, under the general 
power conferred upon Congress by the Federal Constitution 
(Art. iv. § 3). 

The fundamental law of every Territory, as of every State, 
is the Federal Constitution; but whereas every State has also 
its own popularly enacted State Constitution, the Territories 
are not regulated by any similar instruments, which for them 
are replaced by the-Federal statutes establishing their govern¬ 
ment and prescribing its form. 



£HAP. XLVII 


THE TERRITORIES 


587 


In a Territory, as in every State, the executive, legislative, 
and judicial departments were kept distinct. At first local 
legislative power was vested in the Governor and the judges; 
it was afterward conferred on an elective legislature. In the 
later form, the Executive consisted of a governor appointed 
for four years by the President of the United States, with the 
consent of the Senate, and removable by the President, to¬ 
gether with a secretary, treasurer, auditor, and usually also a 
superintendent of public instruction and a librarian. The gov¬ 
ernor commanded the militia, and had a veto upon the acts of 
the legislature, which, however, was (in most Territories) cap¬ 
able of being overridden by a two-thirds majority in each 
house. He was responsible to the Federal government, and re¬ 
ported yearly to the President on the condition of the Territory, 
often making his report a sort of prospectus in which the advan¬ 
tages which his dominions offered to intending immigrants were 
fondly set forth. He also sent a message to the legislature 
at the beginning of each session. Important as was the post of 
Governor, it was often bestowed as a mere piece of party pat¬ 
ronage, with no great regard to the fitness of the appointee. 

A Territorial legislature was composed of two Houses, a 
Council of twelve persons, and a House of Representatives of 
twenty-four persons, elected by districts. The session was 
limited (by Federal statutes) to sixty days, and the salary of 
a member fixed at $4 per day. The Houses worked much 
like those in the States, doing the bulk of their business by 
standing committees, and frequently suspending their rules to 
run measures through with little or no debate. The electoral 
franchise was left to be fixed by Territorial statute, but Federal 
statutes prescribed that every member should be resident in the 
district he represented. The sphere of legislation allowed to the 
legislature was wide, indeed practically as wide as that enjoyed 
by the legislature of a State, but subject to certain Federal 
restrictions. 1 It was subject also to the still more important right 

1 Revised Statutes of U. S. of 1878, § 1851. —“The legislative power of 
every Territory shall extend to all rightful subjects of legislation not incon¬ 
sistent with the Constitution and laws of the United States. But no law shall 
be passed interfering with the primary disposal of the soil; no tax shall be 
imposed on the property of the United States, nor shall the lands or other 
property of non-residents be taxed higher than the lands or other property of 
residents.” 

§ 1889. — ‘‘The legislative assemblies of the several Territories shall not 
grant private charters or especial privileges, but they may, by general incor- 



588 


THE STATE GOVERNMENTS 


PART II 


of Congress to annul or modify by its own statutes any Ter¬ 
ritorial act. In some Territories every act was directed to be 
submitted to Congress for its approval, and, if disapproved, to 
be of no effect; in others submission was not required. But in 
all Congress could exercise without stint its power to override 
the statutes passed by a Territorial legislature, as the British' 
Parliament may override those of a self-governing colony. This 
power was not largely or often exercised. The most remark¬ 
able instance was furnished by Utah, where congressional legis¬ 
lation has had a hard fight in breaking down polygamy, finding 
it necessary even to impose a test oath upon voters. 

The Judiciary consisted of three or more judges of a Supreme 
Court, appointed for four years by the President, with the con¬ 
sent of the Senate, together with a U. S. district attorney and 
a U. S. marshal. The law administered was partly Federal, all 
Federal statutes being construed to take effect, where properly 
applicable, in the Territories, partly local, created in each Ter¬ 
ritory by its own statutes; and appeals where the sum in 
dispute was above a certain value went to the Supreme Fed- 
deral Court. Although these courts were created by Congress 
in pursuance of its general sovereignty — they did not fall within 
the provisions of the Constitution for a Federal judiciary — the 
Territorial legislature regulated their practice and procedure. 
The expense of Territorial governments was borne by the 
Federal treasury. 

The Territories sent neither senators nor representatives to 
Congress, nor did they take part in presidential elections. The 
House of Representatives, under a statute, admitted a delegate 
from each of them to sit and speak, but of course not to vote, 
because the right of voting in Congress depends on the Federal 
Constitution. The position of a citizen in a Territory therefore 
was, and is, a peculiar one. 1 What may be called his private or 
passive citizenship is complete : he has all the immunities and 
benefits which any other American citizen enjoys. But the pub¬ 
lic or active side is wanting, so far as the National govern¬ 
ment is concerned, although complete for local purposes. 2 He is 

poration acts, permit persons to associate themselves together ” for various 
industrial and benevolent purposes specified. Other restrictions were imposed 
by subsequent statutes. 

1 This applies to persons resident in Alaska and Hawaii. 

2 The Romans drew a somewhat similar distinction between the private 
rights of citizenship and the public rights, the latter including the suffrage and 



CHAP. XLVII 


THE TERRITORIES 


589 


in the position of an Australian subject of the British Crown, 
who has full British citizenship as respects private civil rights, 
and a share in the government of his own colony, but does not 
participate in the government of the British empire at large, 
although personally eligible for any political office in the United 
Kingdom or any other part of the empire. It may seem in¬ 
consistent with principle that citizens should be taxed by a 
government in whose legislature they were not represented; 
but the practical objections to giving the full rights of States 
to these comparatively rude communities outweighed any such 
theoretical difficulties. It must moreover be remembered that 
a Territory, which may be called an inchoate or rudimentary 
State, always looked forward to becoming a complete State. 
When its population reached that of an average congressional 
district, its claim to be admitted as a State was strong, and in 
the absence of specific objections was granted. Congress, 
however, having absolute discretion in the matter, often used 
its discretion under the influence of partisan motives. Nevada 
was admitted to be a State when its population was only about 
20,000, mainly for the sake of getting its vote for the thirteenth 
Constitutional amendment. After it rose to 62,266 it declined 
in 1890 to 45,000 but by 1910 had risen again to 81,875. Utah 
was long refused admission, because deemed, on account of the 
strength and peculiar institutions of the Mormon Church, not fit 
for that emancipation from the tutelage of Congress which its 
erection into a State would confer. When Congress resolved to 
turn a Territory into a State, it either (as happened in the cases 
of Idaho and Wyoming) passed an act accepting and ratifying 
a constitution already made for themselves by the people, and 
forthwith admitting the community as a State, or else passed 
what is called an Enabling Act, under which the inhabitants 
elected a Constitutional Convention, empowered to frame a draft 
constitution. When this constitution had been submitted to 
and accepted by the voters of the Territory, the act of Congress 
took effect: the Territory was transformed into a State, and 
proceeded to send its senators and representatives to Congress 

eligibility to office, but with them the distinction attached to the person ; in 
the United States and the British empire it is an affair of residence, and affects 
the suffrage only, not competence to fill an office. In the British general elec¬ 
tion of 1892 a distinguished Canadian statesman and a Parsi gentleman from 
Bombay were elected to the House of Commons, the former by an Irish and the 
latter by a London constituency, and other Canadians have sat in subsequent 
Parliaments, 



590 


THE STATE GOVERNMENTS 


PART II 


in the usual way. The enabling act might prescribe conditions 
to be fulfilled by the State constitution, but did not usually 
attempt, to narrow the right to be enjoyed by the citizens of 
the newly-formed State of subsequently modifying that instru¬ 
ment in any way not inconsistent with the provisions of the 
Federal Constitution. However, in the case of the Dakotas, 
Montana, Washington, Idaho, and Wyoming, the enabling act 
required the conventions to make “by ordinance irrevocable 
without the consent of the United States and the people of the 
said States” certain provisions, including one for perfect reli¬ 
gious toleration and another for the maintenance of public 
schools free from sectarian control. This the six States did ac¬ 
cordingly. But whether this requirement of the consent of Con¬ 
gress would be held binding if the people of the State should 
hereafter repeal the ordinance, quaere. 

The arrangements above described worked well. Self-govern¬ 
ment was practically enjoyed by Territories, despite the supreme 
authority of Congress, just as it is enjoyed by Canada, Australia, 
New Zealand, and South Africa despite the legal right of the 
British Parliament to legislate for every part of the King’s 
dominions. The want of a voice in Congress and in presidential 
elections, and the fact that the governor was set over them by 
an external power, were not felt to be practical grievances, partly 
of course because these young communities were too small and 
too much absorbed in the work of developing their natural 
resources to be keenly interested in national politics. Their 
local political life resembled that of the newer Western States. 
Both Democrats and Republicans had their regular party 
organizations, but the business of a Territorial legislature gave 
little opportunity for real political controversies, though abundant 
opportunities for local jobbing. 

Before we pass away from the Territories, it may be proper 
to say a few words regarding the character and probable future 
of those which have passed into States since 1889. 

The largest, the most populous, and in every way the most 
advanced was Dakota (now the two States of North Dakota 
and South Dakota) which lies west of Minnesota, and south 
of the Canadian province of Manitoba. Its area is 147,700 
square miles, greater than that of Prussia, and much greater 
than that of the United Kingdom (120,500 square miles). Its 
eastern and southern parts are becoming filled, though less 



CHAP. XLVII 


THE TERRITORIES 


591 


rapidly now than was the case some years back, by an intelli¬ 
gent farming population, largely Scandinavian in blood. Pos¬ 
sessing a vast area of undulating prairie land, well fitted for wheat 
crops, and at least the eastern part of which receives enough rain 
to make tillage easy without irrigation, the two Dakotas may 
be ultimately destined to stand among the wealthiest and most 
powerful commonwealths in the Union. 

Montana has an enormous area (145,310 square miles), but 
much of it consists of bare mountains or thin and scarcely 
profitable forest. There are, however, so many rich valleys 
and such an abundance of ranching land, together with some fine 
woodland, not to speak of the valuable mines, that the still 
scanty population will soon be large in some districts. In others, 
however, it must long remain sparse. But here, as in the western 
parts of Dakota, the introduction of irrigation, and of the dry 
farming methods, promises to increase largely the area of cul¬ 
tivable soil. 

Washington, situated on the shores of the Pacific between 
Oregon and British Columbia, had a stronger claim than Mon¬ 
tana, and was fully fit for the rank of a self-governing State. 
That part of it which lies west of the Cascade Range has a 
moist and equable climate, resembling the climate of western 
England, though somewhat less variable. Many of the familiar 
genera and even species of British plants reappear on its hill¬ 
sides. The forests are by far the finest which the United 
States possess, and will, though they are being sadly squandered, 
remain a source of wealth for a century or more to come. I have 
travelled through many miles of woodland where nearly every 
tree was over 250 feet high. The eastern half of the State, lying 
on the inland side of the mountains, is very much drier, and 
with greater extremes of heat and cold; but it is in parts extremely 
fertile. Washington, which had in 1870 a population of only 
23,955, had, in 1890, 349,390 inhabitants, and in 1910, 1,141,990. 

The States of Wyoming and Idaho, which lie to the S. and 
S. W. of Montana and are traversed by a number of lofty ranges 
belonging to the Rocky Mountain system, have comparatively 
little agricultural land, and even their wide pastoral tracts 
suffer somewhat from the dryness of the climate. There are, 
however, rich mineral deposits, especially in Idaho ; there are in 
some places extensive forests, though of trees inferior in size to 
those of the Pacific coast. The population of these States will 



592 


THE STATE GOVERNMENTS 


PART II 


therefore continue to increase rapidly, especially when the 
fertile lands of Dakota have been filled up. But that popula¬ 
tion seemed likely to remain for some time to come less dense, 
and less stable in its character, than the Dakotan; so it was 
doubted whether their admission, which was mainly due to 
party political motives, was a prudent act at a time when Wy¬ 
oming had only 60,589 inhabitants (census of 1890) and Idaho 
only 84,229. 

Utah was, before the arrival of the Mormons in 1848, a desert, 
and indeed an arid desert, whose lower grounds were covered 
with that growth of alkaline plants which the Americans call 
sagebrush. 1 The patient labour of the Saints, directed, at least 
during the pontificate of Brigham Young, by an able and vigilant 
autocracy, has transformed many of the tracts lying along the 
banks of streams into fertile grain, vegetable, and fruit farms. 
The water which descends from the mountains is turned over the 
level ground ; the alkaline substances are soon washed out of the 
soil, and nothing more than irrigation is needed to produce ex¬ 
cellent crops. After this process had advanced some way the 
discovery of rich silver mines drew in a swarm of Gentile colonists, 
and the non-Mormon population of some districts is now con¬ 
siderable. As Utah had, in 1890, 207,000 inhabitants, it would 
long before 1894 have been admitted as a State but for the desire 
of Congress to retain complete legislative control, and thereby to 
stamp out polygamy. That object seemed, however, at last likely 
to be attained, as at the latest Territorial election before 1894 
the Gentiles proved to be in a majority. Although much of 
its surface is likely to remain barren and uninhabited, enough is 
fit for tillage and for dairy-farming to give it a prospect of sup¬ 
porting a large settled population, and of late years many tracts 
have been rendered productive by irrigation. 

Oklahoma (Ind. “beautiful lands”) was the name of the Ter¬ 
ritory which a statute of 1890 created out of the central and 
almost unoccupied parts of the Indian Territory, which lay 
west of Arkansas and south of Kansas. The rest of that Indian 
Territory was united with it to form the new State of Oklahoma 
admitted in 1907. It is a rolling prairie country, diversified by 


1 The so-called sage-brush plants are not species of what in England is called 
sage (Salvia) but mostly belong to the order Compositae, which is unusually 
strong in America. Something like a third of the total phaenogamous genera 
of the United States have been estimated to belong to it. 



CHAP. XLVII 


THE TERRITORIES 


593 


ranges of picturesque hills, the eastern and central parts of it fit 
for agriculture without irrigation, and producing cotton and to¬ 
bacco as well as wheat and maize. The soil, though sandy in parts, 
is generally fertile. Besides coal, zinc, and other minerals, there 
are oil-bearing tracts of great value. The population, which in 
1890 was 61,834, and had in 1910 reached 1,657,155, 1 consists 
of recent immigrants, the northern counties having been occu¬ 
pied by men from Kansas, the southern by Texans and Arkan¬ 
sans, both of whom flooded it in a sudden wave, seeking to seize 
the land when it was thrown open to settlement. There are 
about 68,433 Indians, nearly all settled as land-holding citizens : 
and each has a land allotment from the United States varying 
from forty acres to several thousand, according to value. The 
five civilized Indian nations (Cherokees, Creeks, Seminoles, 
Choctaws, and Chickasaws) have retained a certain measure of 
local organization and self-government, but they are also quali¬ 
fied voters. Most of them speak English, and most have 
settled down to agriculture or other industrial pursuits. All 
the Cherokees can read and write. There are also other Indian 
tribes, of whom the most numerous are the Osages. Of the 
111,969 persons of colour some are descended from negroes who 
before the Civil War were slaves of the Indians. 

• UNew Mexico, with an area larger than the United Kingdom 
(population in 1910, 327,301), is still largely peopled by Indo- 
Spanish Mexicans, 2 who speak Spanish, and was, until 1910, 
deemed to be scarcely qualified for the self-government which or¬ 
ganization as a State implies. 2 Over a large part of the country 
water is still too scarce and the soil too hilly to make tillage pos¬ 
sible. The same remark applies to Arizona, in the southern 
part of which the sides of the splendid mountain groups are 
barren, and the plains support only a scanty vegetation. There 
are however fine forests in the more northerly tracts, and in some 
places irrigation enables the soil to be cultivated. Both ter¬ 
ritories are rich in minerals, but a mining population is not only 
apt to be disorderly, but is fluctuating, moving from camp to 
camp as richer deposits are discovered or old veins worked out. 

1 A part of this large increase is of course due to the union of Oklahoma and 
Indian Territories in 1907. 

2 There were, in 1900, 13,000 and in 1910, 20,000 Indians, some of them settled 
and comparatively civilized. Of these, many inhabit the so-called “pueblos,” 
villages built on or excavated in rocks. They have preserved more traces of 
the primitive American culture than any other Indians in the United States. 

2 Q 



594 


THE STATE GOVERNMENTS 


PART II 


Ranching and mining are pursuits which do not draw in many 
permanent settlers. Still the time must come when the increase 
of population in the region immediately to the east of the Rocky 
Mountains will turn a fuller stream of immigration into these less 
promising regions, and bring under irrigation culture large tracts 
which are now not worth working. No one can yet say when 
that time will arrive. Many, including not a few of the more 
sober minded residents, thought that it was for the benefit 
of these two Territories themselves that they should remain 
content with that limited and qualified form of self-government 
which they had been enjoying. Congress has, however, thought 
otherwise; and now that Statehood has been conferred upon 
them there remain no more Territories of the organized type on 
the American Continent. 

Europeans may ask why the theory of American democracy, 
which deems all citizens entitled to a voice in the National 
government, was not allowed to prevail at least so far as to 
give the inhabitants of the Territories the right of suffrage in 
congressional and presidential elections. 

The question is a fair one. Were it possible under the Fed¬ 
eral Constitution to admit Territorial residents to active Federal 
citizenship — i.e. to Federal suffrage — admitted they would 
be. But the Union is a union of States. It knows no repre¬ 
sentatives in Congress, no electors for the Presidency, except 
those chosen in States by State voters. The only means of 
granting Federal suffrage to citizens in a Territory was there¬ 
fore to turn the Territory into a State. To do this is to confer 
a power of self-government, guaranteed by the Federal Con¬ 
stitution, for which a Territory may be still unfit, and there¬ 
with entitle this possibly small and rude community to send 
two senators to the Federal Senate who have there as much 
weight as the two senators from New York with its nine 
millions of people. And a practical illustration of the evils to 
be feared has been afforded by the case of Nevada, a State 
whose inhabitants number only about 81,000, and which is 
really a group of mining camps, some of them already aban¬ 
doned. Its population is obviously unworthy of the privilege 
of sending two men to the Senate, and did in fact allow itself 
to sink forthwith, for political purposes, into a sort of rotten 
borough which could be controlled or purchased by the leaders 
of a Silver Ring. It would evidently have been better to allow 



CHAP. XLVII 


THE TERRITORIES 


595 


Nevada to remain in the condition of a Territory till a large 
settled and orderly community had occupied her surface, which 
is at present a parched and dismal desert, where the streams 
that descend from the eastern slope of the Sierra Nevada soon 
lose themselves in lakes or marshes. 

On a review of the whole matter it may safely be said that 
the American scheme of Territorial government, though it 
suffered from the occasional incompetence of the Governor, and 
was scarcely consistent with democratic theory, worked well in 
practice, and gave little ground for discontent to the inhabitants 
of the Territories themselves. 


/ 



CHAPTER XLVIII 


LOCAL GOVERNMENT 

This is the place for an account of local government in the 
United States, because it is a matter regulated not by Federal 
law but by the several States and Territories, each of which 
establishes such local authorities, rural and urban, as the people 
of the State or Territory desire, and invests them with the req¬ 
uisite powers. But this very fact indicates the immensity of 
the subject. Each State has its own system of local areas 
and authorities, created and worked under its own laws; and 
though these systems agree in many points, they differ in so 
many others, that a whole volume would be needed to give 
even a summary view of their peculiarities. All I can here 
attempt is to distinguish the leading types of local government 
to be found in the United States, to describe the prominent 
features of each type, and to explain the influence which the 
large scope and popular character of local administration exercise 
upon the general life and well-being of the American people. 

Three types of rural local government are discernible in 
America. The first is characterized by its unit, the Town or 
Township, and exists in the six New England States. The 
second is characterized by a much larger unit, the county, and 
prevails in the Southern States. The third combines some 
features of the first with some of the second, and may be called 
the mixed system. It is found, under a considerable variety 
of forms, in the Middle and North-western States. The differ¬ 
ences of these three types are interesting, not only because 
of the practical instruction they afford, but also because they 
spring from original differences in the character of the colonists 
who settled along the American coast, and in the conditions under 
which the communities there founded were developed. 

The first New England settlers were Puritans in religion, and 
sometimes inclined to republicanism in politics. They were 
largely townsfolk, accustomed to municipal life and to vestry 

596 


CHAP. XLVIII 


LOCAL GOVERNMENT 


597 


meetings. They planted their tiny communities along the 
sea-shore and the banks of rivers, enclosing them with stockades 
for protection against the warlike Indians. Each was obliged 
to be self-sufficing, because divided by rocks and woods from the 
others. Each had its common pasture on which the inhabitants 
turned out their cattle, and which officers were elected to manage. 
Each was a religious as well as a civil body politic, gathered round 
the church as its centre ; and the equality which prevailed in the 
congregation prevailed also in civil affairs, the whole community 
meeting under a president or Moderator to discuss affairs of 
common interest. Each such settlement was called a Town, or 
Township, and was in fact a miniature commonwealth, exercising 
a practical sovereignty over the property and persons of its 
members, — for there was as yet no State, and the distant home 
government scarcely cared to interfere, — but exercising it on 
thoroughly democratic principles. Its centre was a group of 
dwellings, often surrounded by a fence or wall, but it included 
a rural area of seveial square miles, over which farmhouses 
and hamlets began to spring up when the Indians retired. 
The name “town” covered the whole of this area, which was 
never too large for all the inhabitants to come together to a 
central place of meeting. This town organization remained 
strong and close, the colonists being men of narrow means, 
and held together in each settlement by the needs of defence. 
And though presently the towns became aggregated into coun¬ 
ties, and the legislature and governor, first of the whole colony, 
and, after 1776, of the State, began to exert their superior 
authority, the towns (which, be it remembered, remained rural 
communities, making up the whole area of the State) held their 
ground, and are to this day the true units of political life in New 
England, the solid foundation of that well-compacted structure 
of self-government which European philosophers have admired 
and the new States of the West have sought to reproduce. 
Till 1821 1 the towns were the only political corporate bodies in 
Massachusetts, and till 1857 they formed, as they still form in 

1 Boston continued to be a town governed by a primary assembly of all 
citizens till 1822 ; and even then the town-meeting was not quite abolished, 
for a provision was introduced, intended to satisfy conservative democratic 
feeling, into the city charter granted by statute in that year, empowering the 
mayor and aldermen to call general meetings of the citizens qualified to vote 
in city affairs “to consult upon the common good, to give instructions to their 
representatives, and to take all lawful means to obtain a redress of any griev¬ 
ances.” Such primary assemblies are, however, never now convoked. 




598 


THE STATE GOVERNMENTS 


PART II 


Connecticut, the basis of representation in her Assembly, each 
town, however small, returning at least one member. Not a 
little of that robust, if-somewhat narrow, localism which charac¬ 
terizes the representative system of America is due to this origi¬ 
nally distinct and self-sufficing corporate life of the seventeenth 
century towns. Nor is it without interest to observe that al¬ 
though they owed much to the conditions which surrounded the 
early colonists, forcing them to develop a civic patriotism resem¬ 
bling that of the republics of ancient Greece and Italy, they owed 
something also to those Teutonic traditions of semi-independent 
local communities, owning common property, and governing 
themselves by a primary assembly of all free inhabitants, which 
the English had brought with them from the Elbe and the Weser, 
and which, though already decaying, had been to some extent 
perpetuated in the practice of many parts of England, down till 
the days of the Stuart kings. 

Very different were the circumstances of the Southern colonies. 
The men who went to Virginia and the Carolinas were not Puri¬ 
tans, nor did they mostly go in families and groups of families 
from the same neighbourhood. Many were casual adventurers, 
often belonging to the upper class, Episcopalians in religion, and 
with no such experience of, or attachment to, local self-govern¬ 
ment as the men of Massachusetts or Connecticut. They 
settled in a region where the Indian tribes were comparatively 
peaceable, and where therefore there was little need of concen¬ 
tration for the purposes of defence. The climate along the coast 
was thought somewhat too hot for European labour, and such 
labour was scarce, so slaves were imported to cultivate the 
land. Population was thinly scattered; estates were large ; 
the soil was fertile and soon enriched its owners. Thus a 
semi-feudal society grew up, in which authority naturally 
fell to the land owners, each of whom was the centre of a 
group of free dependants as well as the master of an increas¬ 
ing crowd of slaves. There were, therefore, comparatively few 
urban communities, and the life of the colony took a rural type. 
The houses of the planters lay miles apart from one another ; 
and when local divisions had to be created, these were made 
large enough to include a considerable area of territory and 
number of land-owning gentlemen. They were therefore rural 
divisions, counties framed on the model of English counties. 
Smaller circumscriptions there were, such as hundreds and par- 



CHAP. XLVIII 


LOCAL GOVERNMENT 


599 


ishes, but the hundred died out , 1 the parish ultimately be¬ 
came a purely ecclesiastical division, and the parish vestry was 
restricted to ecclesiastical functions, while the county remained 
the practically important unit of local administration, the unit 
to which the various functions of government were aggregated, 
and which, itself controlling minor authorities, was controlled 
by the State government alone. The affairs of the county were 
usually managed by a board of elective commissioners, and not, 
like those of the New England towns, by a primary assembly ; 
and in an aristocratic society the leading planters had of course 
a predominating influence. Hence this form of local go vernment 
was not only less democratic, but less stimulating and educa¬ 
tive than that which prevailed in the New England States. 
Nor was the Virginian county, though so much larger than the 
New England town, ever as important an organism over against 
the State. It may almost be said, that while a New England 
State is a combination of towns, a southern State is from the 
first an administrative as well as political whole, whose sub¬ 
divisions, the counties, had never any truly independent life, but 
were and are mere subdivisions for the convenient dispatch of 
judicial and financial business. 

In the middle States of the Union, Pennsylvania, New Jer¬ 
sey, and New York, settled or conquered by Englishmen some¬ 
time later than New England, the town and town-meeting did 
not as a rule exist, and the county was the original basis of 
organization. But as there grew up no planting aristocracy 
like that of Virginia or the Carolinas, the course of events took 
in the middle States a different direction. As trade and manu¬ 
factures grew, population became denser than in the South. 
New England influenced them, and influenced still more the 
newer commonwealths which arose in the North-west, such as 
Ohio and Michigan, into which the surplus population of the 
East poured. And the result of this influence is seen in the growth 
through the middle and western States of a mixed system, 


1 In Maryland hundreds, which still exist in Delaware, were for a long time 
the chief administrative divisions. We hear there also of “baronies” and 
“townlands,” as in Ireland; and Maryland is usually called a “province,” 
while the other settlements are colonies. Among its judicial establishments 
there were courts of pypowdry (pi& poudre) and “hustings.” 

The hundred is a division of small consequence in southern England, but in 
Lancashire it has some important duties. It repairs the bridges; it is liable 
for damage done in a riot; and it had its high constable. 




600 


THE STATE GOVERNMENTS 


PART II 


which presents a sort of compromise between the County system 
of the older Middle States and the South and the Town 
system of the North-east. There are great differences between 
the arrangements in one or other of these middle and western 
States. But it may be said, speaking generally, that in them 
the county is relatively less important than in the southern 
States, the township less important than in New England. 
The county is perhaps to be regarded, at least in New York, 
Pennsylvania, and Ohio, as the true unit, and the townships 
(for so they are usually called) as its subdivisions. But the 
townships are vigorous organisms, which largely restrict the 
functions of the county authority, and give to local government, 
especially in the North-west, a character generally similar to that 
which it wears in New England. 

So much for the history of the subject; a history far more 
interesting in its details than will be supposed from the rough 
sketch to which limits of space restrict me. Let us now look 
at the actual constitution and working of the organs of local 
government in the three several regions mentioned, beginning 
with New England and the Town system. 1 I will first set forth 
the dry but necessary outline, reserving comments for the fol¬ 
lowing chapter. 

The Town is in rural districts the smallest local circumscrip¬ 
tion. English readers must be reminded that it is a rural, not 
an urban community, and that the largest group of houses it 
contains may be only what would be called in England a hamlet 
or small village. Its area seldom exceeds five square miles; 
its population is usually small, averaging less than 3000, but oc¬ 
casionally ranges up to 13,000, and sometimes falls below 200. 2 
It is governed by an assembly of all qualified voters resident 


1 The word Town, which I write with a capital when using it in the Ameri¬ 
can sense, is the Icelandic tun, Anglo-Saxon ttin, German zaun, and seems origi¬ 
nally to have meant a hedge, then a hedged or fenced plot or enclosure. In 
Scotland (where it is pronounced “toon”) it still denotes the farmhouse and 
buildings; in Iceland the manured grass plot, enclosed within a low green 
bank or raised dyke, which surrounds the baer or farmhouse. In parts of 
eastern England the chief cluster of houses in a parish is still often called “the 
town.” In the North of England, where the parishes are more frequently 
large than they are in the South, the civil divisions of a parish are called town¬ 
ships. 

2 1 find in Massachusetts (Census of 1910) one town (New Ashford) with 
only 92 inhabitants, and one (Brookline, a suburb of Boston) with 27,792, while 
Revere has 18,219. But both in this and other New England States most towns 
have a population of from 1200 to 2500. 



CHAP. XLVIII 


LOCAL GOVERNMENT 


601 


within its limits, which meets at least once a year, in the spring 
(a reminiscence of the Easter vestry of England), and from time 
to time as summoned. There are usually three or four meetings 
each year. Notice is required to be given at least ten days 
previously, not only of the hour and place of meeting, but of the 
business to be brought forward. This assembly has, like the 
Roman Comitia and the Landesgemeinde in three of the older 
Swiss Cantons, the power both of electing officials and of legis¬ 
lating. It chooses the selectmen, school committee, and executive 
officers for the coming year; it enacts bye-laws and ordinances 
for the regulation of all local affairs ; it receives the reports of the 
selectmen and the several committees, passes their accounts, 
hears what sums they propose to raise for the expenses of next 
year, and votes the necessary taxation accordingly, appropriating 
to the various local purposes — schools, aid to the poor, the 
repair of highways, and so forth — the sums directed to be levied. 
Its powers cover the management of the town lands and other 
property, and all local matters whatsoever, including police and 
sanitation. Every resident has the right to make, and to support 
by speech, any proposal. The meeting which is presided over 
by "a chairman called the Moderator — a name recalling the 
ecclesiastical assemblies of the English Commonwealth 1 — is 
held in the town hall, if the Town possesses one, or in the principal 
church or schoolhouse, but sometimes in the open air. The 
attendance is usually good; the debates sensible and practical. 
Much of course depends on the character and size of the popula¬ 
tion. Where it is of native American stock, and the number of 
voting citizens is not too great for thorough and calm discussion, 
no better school of politics can be imagined, nor any method of 
managing local affairs more certain to prevent jobbery and waste, 
to stimulate vigilance and breed contentment. 2 When, however, 
the town-meeting has grown to exceed seven or eight hundred 
persons, where the element of farmers has been replaced by that 
of factory operatives, and still more where any considerable sec- 


1 The presiding officer in the synods and assemblies of the Scottish Presby¬ 
terian Churches is still called the Moderator. This is also the president’s, title 
in the synods of the American Presbyterian churches, and in the councils of 
the Congregationalist and associations of the Baptist churches. 

2 See an interesting account of the town-meeting sixty years ago in Mr. 
J. K. Hosmer’s Life of Samuel Adams, chap, xxiii.. An instructive description 
of a typical New England Town may be found in a pamphlet entitled The 
Town of Groton, by Dr. S. Green, late Mayor of Boston. 



602 


THE STATE GOVERNMENTS 


PART II 


tion are strangers, such as the Irish or French Canadians who have 
latterly poured into New England, the institution no longer 
works well, because the multitude is too large for debate, factions 
are likely to spring up, and the new immigrants, untrained in self- 
government, become the prey of wirepullers or petty demagogues. 
The social conditions of to-day in New England are less favorable 
than those which gave birth to it; and there are now in the 
populous manufacturing States of Massachusetts, Rhode Island, 
and Connecticut comparatively few purely rural towns, such as 
those which suggested the famous eulogium of Jefferson, who 
eighty years ago desired to see the system transplanted to his 
own Virginia : 

“ Those wards called townships in New England are the vital 
principle of their governments, and have proved themselves 
the wisest invention ever devised by the wit of man for the 
perfect exercise of self-government, and for its preservation. 

. . . As Cato then concluded every speech with the words 
1 Carthago delenda est,’ so do I every opinion with the injunction 
‘Divide the counties into wards.’” 

The executive of a Town consists of the selectmen, from three 
to nine in number, usually either three, five, or seven. They are 
elected annually, and manage all the ordinary business, of course 
under the directions given them by the last preceding meet¬ 
ing. There is also a Town-clerk, who keeps the records, and 
minutes the proceedings of the meeting, and is generally also 
registrar of births and deaths; a treasurer; assessors, who 
make a valuation of property within the Town for the purposes 
of taxation; the collector, who gathers the taxes, and diverse 
minor officers, such as hog-reeves 1 (now usually called field 
drivers), cemetery trustees, library trustees, and so forth, ac¬ 
cording to local needs. There is always a school committee, with 
sometimes sub-committees for minor school districts if the Town 
be a large one. Some of these officers and committees are paid 
(the selectmen usually), some unpaid, though allowed to charge 
their expenses actually incurred in Town work ; and there has 
generally been no difficulty in getting respectable and competent 
men to undertake the duties. Town elections are not professedly 
political, i.e. they are not usually fought on party lines, though 

1 Mr. R. W. Emerson served in this capacity in his Town, fulfilling the duty 
understood to devolve on every citizen of accepting an office to which the Town 
appoints him. 



CHAP. XLVIII 


LOCAL GOVERNMENT 


603 


occasionally party spirit affects them, and a man prominent in 
his party is more likely to obtain support. 1 

Next above the Town stands the county. Its area and popu¬ 
lation vary a good deal. Massachusetts with an area of 8040 
square miles has fourteen counties; Rhode Island with 1053 
square miles has five; the more thinly peopled Maine, with 
29,985 square miles, has sixteen, giving an average of about 
1100 square miles to each county on these three States, though 
in Rhode Island the average is only 211 square miles. The 
populations of the counties run from 3000 upwards; the aver¬ 
age population being, where there are no large cities, from 
30,000 to 50,000. 2 The county was originally an aggregation 
of Towns for judicial purposes, and is still in the main a 
judicial district in and for which civil and criminal courts are 
held, some by county judges, some by State judges, and in and 
for which certain judicial officers are elected by the people at the 

1 When a Town reaches a certain population it is usually transformed by 
law into a City; but occasionally, while the City is created as a municipal cor¬ 
poration within the limits of a Town, the Town continues to exist as a distinct 
organization. A remarkable instance is furnished by the Town and City of 
New Haven, in Connecticut. New Haven was incorporated as a city in 1784. 
But it continued to be and is still a town also. Three-fourths of the area of the 
town and seventeen-eighteenths of its population are within the limits of the city. 
But the two governments remain completely distinct. The city has its mayor, 
aldermen, and common council, and its large executive staff. The town-meet¬ 
ing elects its selectmen and other officers, 152 in all, receives their reports, 
orders and appropriates taxes, and so forth, Practically, however, it is so much 
dwarfed by the city as to attract little attention. Says Mr. Levermore: “This 
most venerable institution appears to-day in the guise of a gathering of a few 
citizens, who do the work of as many thousands. The few individuals who are 
or have been officially interested in the government of the town, meet together, 
talk over matters in a friendly way, decide what the rate of taxation for the 
coming year shall be, and adjourn. Not one-seventieth part of the citizens of 
the town has attended an annual town-meeting; they hardly know when it is 
held. The newspapers give its transactions a scant notice, which some of 
their subscribers probably read. The actual governing force of the town is 
therefore an oligarchy in the bosom of a slumbering democracy. But the town 
is well governed. Its government carries too little spoil to attract those un¬ 
reliable politicians who infest the city council. If the ruling junto should ven¬ 
ture on too lavish a use of the town’s money, an irresistible check would appear 
at once. Any twenty citizens could force the selectmen to summon the town 
together, and the apparent oligarchy would doubtless go down before the 
awakened people.” — “The Town and City Government of New Haven,” in 
J. H. U. Studies, Fourth Series. 

The student of Roman history will find in this quaint survival of an ancient 
assembly some resemblance to the comitia curiata of Rome under the later 
Republic. But the American survival is the more vigorous of the two. 

2 The average population of a Massachusetts county is 240,450, the two 
smallest counties having only 4504 and 2962 respectively, the largest 669,915. 




604 


THE STATE GOVERNMENTS 


PART II 


polls, who also choose a sheriff and a clerk. Police belongs 
to the Towns and cities, not to the county within which they 
lie. The chief administrative officers are the county commis¬ 
sioners, of whom there are three in Massachusetts (elected for 
three years, one in each year), and county treasurer. 1 They 
are salaried officers, and have the management of county build¬ 
ings, such as court-houses and prisons, with power to lay out 
new highways from town to town, to grant licences, estimate 
the amount of taxation needed to defray county charges, 2 and 
apportion the county tax among the towns and cities by whom 
it is to be levied. But except in this last-mentioned respect 
the county authority has no power over the Towns, and it will 
be perceived that while the county commissioners are controlled 
by the legislature, being limited by statute to certain well-defined 
administrative functions, there exists nothing in the nature of a 
county council or other assembly with legislative functions. The 
functions of the county are in fact of small consequence: it is 
a judicial district and a highway district and little more. 

This New England system resembles that of Old England 
as the latter stood during the centuries that elapsed between 
the practical disappearance of the old County Court or Shire 
Moot and the creation by comparatively recent statutes of such 
intermediate bodies and authorities as poor-law unions, high¬ 
way districts and boards, local sanitary authorities. If we 
compare the New England scheme with that of the England 
of to-day, we are struck not only by the greater simplicity of the 
former, but also by the fact that it is the smaller organisms, 
the Towns, that are most powerful and most highly vitalized. 
Nearly everything belongs to them, only those duties devolv¬ 
ing on the counties which a small organism obviously cannot 
undertake. The system of self-governing Towns no doubt 
works under the supervision of a body, the State legislature, 
which can give far closer attention to local affairs than the 
English parliament can give to English local business. But 

1 In Connecticut the Commissioners are appointed by the State legislature, 
and they have no taxing power. In Rhode Island there are none but judicial 
officers for the counties. In Vermont I find besides judges, a state attorney, 
high bailiff, and county clerk. In Massachusetts all judges are appointed by 
the governor. 

2 The chief items of county expenditure are those for judicial purposes, in¬ 
cluding the maintenance of buildings, and for roads and bridges. But in some 
States roads, except the few State roads, are maintained by the Town. 



CHAP. XLVIII 


LOCAL GOVERNMENT 


605 


in point of faGt the State legislature interferes but little (less, 
I think, than the Local Government Board interferes in Eng¬ 
land) with the conduct of rural local business, though often 
required to deal with the applications which Towns make to 
be divided or have their boundaries altered, and which are fre¬ 
quently resisted by a part of the inhabitants. 

The town-meeting system has, in the opinion of American 
publicists, begun to decline in New England. Many of the rural 
areas have become too populous for it, and the new immigrants 
that have flocked in — French-speaking Canadians, Irish, and 
people from Central or Southern Europe — are less fit to work 
such a system than were the pure English stock of a century ago. 

The system which prevails in the Southern States need not 
long detain us, for it is less instructive and has proved less 
successful. Here the unit is the county, except in Louisiana, 
where the equivalent division is called a parish. The county 
was originally a judicial division, established for the purposes 
of local courts, and a financial one, for the collection of State 
taxes. It has now, however, generally received some other 
functions, such as the superintendence of public schools, the 
care of the poor, and the management of roads. In the South 
counties are larger than in New England, but not more popu¬ 
lous, for the country is thinly peopled . 1 The county officers, 
whose titles and powers vary somewhat in different States, 
are usually the Board or Court of county commissioners, an 
assessor (who prepares the valuation), a collector (who gathers 
the taxes 2 ), a treasurer, a superintendent of education, an over¬ 
seer of roads — all of course salaried, and now, as a rule, elected 
by the people, mostly for one or two years . 3 These county 
officers have, besides the functions indicated by their names, the 
charge of the police and the poor, and of the construction of 
public works, such as bridges and prisons. The county judges 


1 Georgia, with 59,475 square miles, has 137 counties; Alabama, with 52,250 
square miles, has 66. Speaking generally, the newer States have the larger 
counties, just as in England the smallest parishes are in the first settled parts 
of England, or rather in those parts where population was comparatively dense 
at the time when parishes sprang up. 

2 Sometimes, as in Louisiana, the sheriff is also tax collector. 

3 In some States some of these officials are nominated by the governor. In 
Florida the governor appoints even the board of five county commissioners. 
The other county officers, viz. clerk of circuit court, sheriff, constables, assessor 
of taxes, tax-collector, treasurer, superintendent of public instruction, and sur¬ 
veyor, are elected by the people for two or four years. 



606 


THE STATE GOVERNMENTS 


PART II 


and the sheriff, and frequently the coroner, are also elected 
by the people. The sheriff is everywhere in America neither an 
ornamental person, as he has become in England, nor a judge, 
with certain executive functions, as in Scotland, but the chief 
executive officer attached to the judicial machinery of the 
county. 

In these Southern States there exist various local divisions 
smaller than the counties. 1 Their names and their attributions 
vary from State to State, but they have no legislative author¬ 
ity like that of the town-meeting of New England, and their 
officers have very limited powers, being for most purposes 
controlled by the county authorities. The most important 
local body is the school committee for each school district. 
In several States, such as Virginia and North Carolina, we now 
find townships, and the present tendency seems in these States 
to be towards the development of something resembling the New 
England Town. It is a tendency which grows with the growth 
of population, with the progress of manufactures and of the mid¬ 
dle and industrious working class occupied therein, and especially 
with the increased desire for education. The school, some one 
truly says, is becoming the nucleus of local self-government 
in the South now, as the church was in New England two cen¬ 
turies ago. 2 Nowhere, however, has there appeared a primary 
assembly; while the representative local assembly is still in its 
infancy. Local authorities in the South, and in the States which, 
like Nevada and Oregon, may be said to have adopted the county 
system, are generally executive officers and nothing more. 

The third type is less easy to characterize than either of the 
two preceding, and the forms under which it appears in the 
Middle and North-western States are even more various than 
those referable to the second type. Two features mark it. 
One is the importance and power of the county, which in the 
history of most of these States appears before any smaller 
division; the other is the activity of the township, 3 which has 

1 In South Carolina the parish was originally a pretty strong local unit, but 
it withered away as the county grew under the influence of the plantation 
system. The word “parish” is in America now practically equivalent to 
“congregation,” and does not denote a local area. 

2 Virginia has moved in this direction. See Mr. George E. Howard’s treatise, 
Local Constitutional History of the United States, and Mr. Fairlie’s recent book 
on Local Government in Counties, Towns, and Villages. 

3 “Township” is the term most frequently used outside New Ensdand, 
“ Town ” in New England. 



CHAP. XLYIII 


LOCAL GOVERNMENT 


607 


more independence and a larger range of competence than under 
the system of the South. Now of these two features the former 
is the more conspicuous in one group of States — Pennsylvania, 
New Jersey, New York, Ohio, Indiana, Iowa; the latter in 
another^ group — Michigan, Illinois, Wisconsin, Minnesota, the 
two Dakotas, the reason being that the New Englanders, who 
were often the largest and usually the most intelligent and ener¬ 
getic element among the settlers in the more northern of these 
two State groups, carried with them their attachment to the 
Town system and their sense of its value, and succeeded, though 
sometimes not without a struggle, in establishing it in the six 
great and prosperous commonwealths which form that group. 
On the other hand, while Pennsylvania, New Jersey, and New 
York had not (from the causes already stated) started with the 
Town system, they never adopted it completely; while in Ohio 
and Indiana the influx of settlers from the Slave States, as 
well as-from New York and Pennsylvania, gave to the county 
an early preponderance, which it has since retained. The con¬ 
flict of the New England element with the Southern element is 
best seen in Illinois, the northern half of which State was settled 
by men of New England blood, the southern half by pioneers 
from Kentucky and Tennessee. The latter, coming first, estab¬ 
lished the county system, but the New Englanders fought against 
it, and in the constitutional convention of 1848 carried a provi¬ 
sion, embodied in the constitution of that year, and repeated in 
the present constitution of 1870, whereby any county may adopt 
a system of township organization “whenever the majority of the 
legal voters of the county voting at any general election shall so 
determine.” 1 Under this power four-fifths of the 102 counties 
have now adopted the township system. 2 

Illinois furnishes so good a sample of that system in its newer 
form that I cannot do better than extract from a clear and 
trustworthy writer, the following account of the whole scheme of 
local self-government in that State, which is fairly typical of the 
North-west : — 


1 See Constitution of 1870, Art. x. § 5, where a provision is added that any 
county desiring to forsake township organization may do so by a vote of the 
electors in the county, in which case it comes under the county system pre¬ 
scribed in the following sections of that article. 

2 Illinois has 102 counties, with an average population, in 1910, of 55,000; 
Iowa 99 counties, with an average population in 1910 of 22,675. The average 
population of the 40 counties of England (excluding Wales) was (in 1901) 548,000. 



608 


THE STATE GOVERNMENTS 


PART n 


“ When the people of a county have voted to adopt the township 
system, the commissioners proceed to divide the county into towns, mak¬ 
ing them conform with the congressional or school townships, except in 
special cases. Every town is invested with corporate capacity to be a 
party in legal suits, to own and control property, and to make contracts. 
The annual town-meeting of the whole voting population, held on the 
first Tuesday in April, for the election of town officers and the transaction 
of miscellaneous business, is the central fact in the town government. 
The people assembled in town-meeting may make any orders concern¬ 
ing the acquisition, use, or sale of toVn property; direct officers 
in the exercise of their duties; vote taxes for roads and bridges, and for 
other lawful purposes ; vote to institute or defend suits at law ; legislate 
on the subject of noxious weeds, and offer rewards to encourage the ex¬ 
termination of noxious plants and vermin; regulate the running at large 
of cattle and other animals; establish pounds, and provide for the im¬ 
pounding and sale of stray and trespassing animals ; provide public wells 
and watering-places ; enact bye-laws and rules to carry their powers into 
effect; impose fines and penalties, and apply such fines in any manner 
conducive to the interests of the town. 1 

“ The town officers are a supervisor, who is ex officio overseer of the 
poor, a clerk, an assessor, and a collector, all of whom are chosen an¬ 
nually ; three commissioners of highways elected for three years, one re¬ 
tiring every year; and two justices of the peace and two constables, who 
hold office for four years. 

“ Every male citizen of the United States who is twenty-one years old, 
who has resided in the State a year, in the county ninety days, and in the 
township thirty days, is entitled to vote at town-meeting; but a year’s 
residence in the town is required for eligibility to office. 

“ The supervisor is both a town and a county officer. He is general 
manager of town business, and is also a member of the county board, 
which is composed of the supervisors of the several towns, and which has 
general control of the county business. He also acts as overseer of the 
poor. The law leaves it to be determined by the people of a county 
whether the separate towns or the county at large shall assume the care 
of paupers. When the town has the matter in charge, the overseer gen¬ 
erally provides for the indigent by a system of out-door relief. If the 
county supports the poor, the county board is authorized to establish a 
poor-house and farm for the permanent care of the destitute, and tem¬ 
porary relief is afforded by the overseers in their respective towns, at the 
county’s expense. The supervisor, assessor, and clerk constitute a Board 
of Health. 

“ Town officers are compensated according to a schedule of fixed fees 
for specific services, or else receive certain per diem wages for time actually 
employed in official duties. The tax-collector’s emolument is a per¬ 
centage. 

“ For school purposes, the township is a separate and distinct corpora¬ 
tion, with the legal style, ‘ Trustees of Schools of Township-, Range 

-,’ according to the number by which the township is designated in 

1 There are English analogies to all these powers, but in England some of 
them are or were exercised in the Manor court and not in the Vestry. 





CHAP. XLVIII 


LOCAL GOVERNMENT 


609 


the Congressional Survey. The school trustees, three in number, are 
usually elected with the officers of the civil township at town-meetings, 
and hold office for three years. They can divide the township into school 
districts. It must be remembered that the township is exactly six miles 
square. It is the custom to divide it into nine districts, two miles square, 
and to erect a schoolhouse near the centre of each. As the county roads 
are, in most instances, constructed on the section lines — and therefore 
run north and south, east and west, at intervals of a mile — the traveller 
expects to find a schoolhouse at every alternate crossing. The people 
who live in these sub-districts elect three school directors, who control 
the school in their neighbourhood. They are obliged to maintain a free 
school for not less than five nor more than nine months in every year, 
are empowered to build and furnish schoolhouses, hire teachers, and fix 
their salaries, and determine what studies shall be taught. They may 
levy taxes on all the taxable property in their district, but are forbidden 
to exceed a rate of two per cent for educational or three per cent for build¬ 
ing purposes. 

“ The township funds for the support of schools arise from three 
sources. (1) The proceeds of the school lands given by the United States 
Government, the interest from which alone may be expended. (2) The 
State annually levies on all property a tax of one-fifth of one per cent, 
which constitutes a State school fund, and is divided among the counties 
in the ratio of their school population, and is further distributed among 
the townships in the same ratio. (3) Any amount needed in addition to 
these sums is raised by taxation in the districts under authority of the 
directors. All persons between the ages of six and twenty-one years 
are entitled to free school privileges. Women are eligible to every school 
office in the State, and are frequently chosen directors. 

“ The average Illinois county contains sixteen townships. The county 
government is established at some place designated by the voters, and 
called the ‘county seat.’ The corporate powers of the county are exer¬ 
cised by the county board, which, in counties under township organiza¬ 
tion, is composed of the several town supervisors, whih in other counties 
it consists of three commissioners elected by the people of the whole 
county. The board manage all county property, funds, and business; 
erect a court-house, jail, poorhouse, and any necessary buildings; levy 
county taxes, audit all accounts and claims against the county, and, in 
counties not under township organization, have general oversight of high¬ 
ways and paupers. Even in counties which have given the care of high¬ 
ways to the townships, the county board may appropriate funds to aid 
in constructing the more important roads and expensive bridges. The 
treasurer, sheriff, 1 coroner, and surveyor are county functionaries. 2 . 

“ The county superintendent of schools has oversight of all educational 
matters, advises town trustees and district directors, and collects com¬ 
plete school statistics, which he reports to the county board, and trans¬ 
mits to the State superintendent of public instruction. 

1 The sheriff is the executive officer of the higher courts, with responsibility 
for the peace of the county. In case of riot he may call out the county militia. 

2 Ordinary police work, other than judicial, is not a county matter, but left 
to the township with its constables. 

2 R 



610 


THE STATE GOVERNMENTS 


PART II 


“ Every county elects a judge, who has full probate jurisdiction, and 
appoints administrators and guardians. He also has jurisdiction in civil 
suits at law, involving not more than $1000, in such minor criminal cases 
as are cognizable by a justice of the peace, and may entertain appeals 
from justices or police courts. The State is divided into thirteen judicial 
districts, in each of which the people elect three judges, who constitute a 
circuit court. The tribunal holds two or more sessions annually in each 
county within the circuit, and is attended at every term by a grand or 
petit jury. It has a general original jurisdiction, and hears appeals from 
the county judge and from justices’ courts. 

“ To complete the judicial system of the State there are four appellate 
courts and one supreme court of last resort. Taxes whether for State, 
county, or town purposes are computed on the basis of the assessment 
made by the town assessor, and are collected by the town collector. 
The assessor views and values all real estate, and requires from all 
persons a true list of their personal property. The assessor, clerk, and 
supervisor constitute a town equalizing board, to hear complaints and 
to adjust and correct the assessment. 

“ The assessors’ books from all the towns then go before the county 
board, who make such corrections as cause valuations in one town to 
bear just relation to valuations in the others. The county clerk trans¬ 
mits an abstract of the corrected assessment to the auditor of the State, 
who places it in the hands of a State board of equalization. 

“ This board adjusts valuations between counties. All taxes are esti¬ 
mated and collected on this finally corrected assessment. The State 
authorities, the county board, the town supervisors, the highway com¬ 
missioners, the township school trustees, and the proper officers of incor¬ 
porated cities and villages, all certify to the county clerk a statement of 
the amount they require for their several purposes. The clerk prepares 
a collection-book for each town explaining therein the sum to be raised, 
for each purpose. Having collected the total amount the collector dis¬ 
burses to each proper authority its respective quota. In all elections, 
whether for President of the United States, representatives in Congress, 
State officers or county officers, the township constitutes an election 
precinct, and the supervisor, assessor, and collector sit as the election 
judges. 

“ The words ‘town’ and ‘township’ signify a territorial division of 
the county, incorporated for purposes of local government. There re¬ 
mains to be mentioned a very numerous class of municipal corporations 
known in Illinois statutes as ‘villages’ and ‘cities.’ A minimum popu¬ 
lation of three hundred, occupying not more than two square miles in 
extent, may by popular vote become incorporated as a ‘village,’ under 
provisions of the general law. Six village trustees are chosen, and they 
make one of their number president, thereby conferring on him the gen¬ 
eral duties of a mayor. At their discretion the trustees appoint a clerk, 
a treasurer, a street commissioner, a village constable, and other officers 
as they deem necessary. The people may elect a police magistrate, whose 
jurisdiction is equal to that of a justice of the peace.” 1 

1 Local Government in Illinois, by Albert Shaw, LL.D., in J. H. U. Studies , 
Baltimore, 1883. 




CHAP. XLVIII 


LOCAL GOVERNMENT 


611 


A similar picture of the town-meeting in Michigan is given by 
another authority: — 

“ The first Monday in April of each year every citizen of the United 
States twenty-one years of age and upwards who has resided in the State 
six months, and in the township the ten days preceding, has the right of 
attending and participating in the meeting. The supervisor, the chief 
executive officer of the township, presides. After the choice of officers 
for the ensuing year the electors proceed to the discussion of town business. 
Complaint is perhaps made that the cattle in a certain part of the town¬ 
ship are doing damage by running at large, a bye-law is passed forbidding 
the same under penalty not exceeding ten dollars. 

“ A bridge may be wanted in another part of the township, but the in¬ 
habitants of that road district cannot bear the expense ; the town-meeting 
votes the necessary amount not exceeding the limits of law, for the laws 
restricting the amount of taxation and indebtedness are very particular 
in their provisions. 

“ The voters may regulate the keeping and sale of gunpowder, the 
licensing of dogs, and the maintenance of hospitals, and may order the 
vaccination of all inhabitants. They can also decide how much of the 
one-mill tax on every dollar of the valuation shall be applied to the pur¬ 
chase of books for the township library, the residue going to schools. 

“ The annual reports of the various township officers charged with the 
disbursement of public moneys are also submitted at this time. In short, 
whatever is local in character and affecting the township only is subject 
to the control of the people assembled in town-meeting. 

“Yet we may notice some minor differences between the New England 
town-meeting and its sister in Michigan. In the latter the bye-laws and 
regulations are less varied in character. 

“ This is due to the fact that in the West that part of the township 
where the inhabitants are most numerous, the village, and for whose 
regulation many laws are necessary, is set off as an incorporated village, 
just as in nearly all the Central and Western States. These villages have 
the privilege, either directly in village meeting or more often through a 
council of five or more trustees, of managing their own local affairs, their 
police, fire department, streets, and waterworks. In some States, how¬ 
ever, they are considered parts of the township, and as such vote in town¬ 
meeting on all questions touching township roads, bridges, the poor, and 
schools.’! 1 

The conspicuous feature of this system is the reappearance 
of the New England town-meeting, though in a somewhat 
less primitive and at the same time less perfect form, because 
the township of the West is a more artificial organism than the 
rural Town of Massachusetts or Rhode Island, where, until 
after the middle of the nineteenth century, nearly everybody was 

i Local Government in Michigan, by E. W. Bemis, in J. H. XJ. Studies , 
Baltimore, 1883. 



612 


THE STATE GOVERNMENTS 


PARI V 


of English blood, everybody knew everybody else, everybody 
was educated, not only in book learning, but in the traditions 
of self-government. However, such as it is, the Illinois and 
Michigan system has spread and seems likely to spread further. 
It exists in Wisconsin and Minnesota. Recent legislation per¬ 
mits its adoption in California, Nebraska, and in the two 
Dakotas, though in the western parts of these two last-named 
States few townships have been as yet established . 1 

A high authority writes to me : — 

“ Attendance and interest in the town-meetings of the North- 
West are much below those in the New England towns . 2 The 
importance of township government in these States is also 
diminished by the separate organization of villages and small 
cities and by the greater development of county functions.” 

In proportion to the extent in which a State has adopted 
the township system the county has tended to decline in impor¬ 
tance. It is nevertheless of more consequence in the West 
than in New England. It has frequently an educational official 
who inspects the schools, and it raises a tax for aiding schools 
in the poorer townships. It has duties, which are naturally 
more important in a new than in an old State, of laying out main 
roads and erecting bridges and other public works. And some¬ 
times it has the oversight of township expenditure . 3 The board 
of county commissioners consists in Michigan and Illinois of the 


1 In Switzerland the rural Gemeinde or Commune is the basis of the whole 
self-governing system of the Canton. It has charge of the police, the poor, and 
schools, and owns lands. It has a primary assembly, meeting several times a 
year, which discusses communal business and elects an administrative council. 
It resembles in these respects an American Town or Township, but is subject 
for some purposes to the jurisdiction of an official called the Statthalter, ap¬ 
pointed by the Canton for a district comprising a number of communes. 

2 “ In townships of 500 to 600 voters an attendance of 10 to 20 is often reported, 
while in many cases the business is transacted by members of the township 
board. Under these conditions there can be little of the active popular debate, 
which makes the New England meeting an interesting object of study.” Fairlie, 
Local Government in Counties, Towns, and Villages, p. 170. 

3 Mr. Bemis says : “Inasmuch as many of the thousand or more townships 
of a State lack the political education and conservatism necessary for perfect 
self-control, since also many through lack of means cannot raise sufficient 
money for roads, bridges, schools, and the poor, a higher authority is needed, 
with the power of equalizing the valuation of several contiguous towns, of tax¬ 
ing the whole number for the benefit of the poorer, and of exercising a gen¬ 
eral oversight over township expenses. . . . All educators earnestly advocate 
county and State control of schools, that there may be uniformity of methods, 
and that the country districts, the nurseries of our great men in the past, may 
not degenerate. But two influences oppose: the fear of centralization on tho 



CHAP. XLVIII 


LOCAL GOVERNMENT 


613 


supervisors of all the townships within the county ; in Wisconsin 
and Minnesota the commissioners are directly chosen at a county 
election. 

The authority to whom I have already referred observes : — : 

“The County is of much more consequence throughout the 
Middle and North-West than in New England. In addition to 
judicial administration, county expenditures for charities, roads 
and bridges, and educational purposes are of considerable impor¬ 
tance. County poorhouses are maintained; and poor relief is 
largely a county function. Main roads and bridges and some¬ 
times drainage ditches and other public works are built by the 
county, though county expenditure for these purposes is less 
in States-like Illinois and Michigan, where the town-meeting 
exists, than in Ohio and Indiana. The per capita county ex¬ 
penditure in the States of the Middle West is in fact larger 
than in any other group of States except the Mountain and 
Pacific States ; while in addition to county expenditures, county 
officials collect an important part of the State revenues, and 
sometimes have the oversight of township expenditure.” 

In Michigan, in most counties in Illinois, and in Wisconsin, 
county administration and finances are in charge of a board of 
supervisors elected by townships and cities, as in New York. In 
some Illinois counties and in Minnesota, the Dakotas, and Ne¬ 
braska, there are small county boards of 3 to 7 members, usually 
elected by districts. The larger boards of supervisors are more 
representative, but seem to be less efficient administrative 
authorities ; and in a number of the larger counties of Michigan 
some of the powers of these boards have been transferred to small 
boards of auditors. As a rule, these county boards have no im¬ 
portant legislative power; but in Michigan, by an act of 1909, 
the boards of supervisors were given a general grant of local legis¬ 
lative power, to meet the conditions brought about by the restric¬ 
tion on special acts by the legislature in the new constitution of 
that State. 

Other elective county officers in these States are the prosecut¬ 
ing attorney, sheriff, coroner, county clerk, county treasurer, 
auditor or assessor, and surveyor. 

The political importance of the county is indicated by the 

part of the small towns which need it most, and the dislike of the rich cities 
to tax themselves for the country districts .”—Local Government in Michigan , 
ut supra, p. 18. 



614 


THE STATE GOVERNMENTS 


PART II 


position occupied by the county committee in the party organ¬ 
izations, and by the centring of campaign activity within this 
district. 

I pass to the mixed or compromise system as it appears in the 
other group of States, of which Pennsylvania, Ohio, Indiana, 
and Iowa may be taken as samples. In these States we find 
no town-meeting. Their township may have greater or less 
power, but its members do not come together in a primary 
assembly; it elects its local officers, and acts only through and 
by them. In Ohio there are three township trustees with the 
entire charge of local affairs, a clerk, and a treasurer. In Penn¬ 
sylvania the township is governed by two or three supervisors, 
elected for three years, one each year, together with an assessor 
(for valuation purposes), a town clerk, three auditors, six 
school directors, elected for three years, two each year ; and 
(where the poor are a township charge) two overseers of the poor. 
The supervisors may lay a rate on the township not exceeding 
one per cent on the valuation of the property within its limits for 
the repair of roads, highways, and bridges, and the overseers 
of the poor may, with the consent of two justices , 1 levy a similar 
tax for the poor. But as the poor are usually a county charge, 
and as any ratepayer may work out his road tax in labour, town¬ 
ship rates amount to very little. 

“ In Iowa,” says Mr. Macy, “ the civil township, which is usually six 
miles square, is a local government for holding elections, repairing roads, 
testing property, giving relief to the poor, and other business of local in¬ 
terest. Its officers are three trustees, one clerk, a road supervisor for 
each road district, one assessor, two or more justices of the peace, and 
two or more constables. The justices and constables are in a sense 
county officers. Yet they are elected by townships, and if they remove 
from the township in which they are chosen, they cease to be officers. 
The trustees are chosen for three years, but their terms of office are so 
arranged that one is chosen each year. The other officers are chosen for 
two years. If there is within the limits of the township an incorporated 
town or city, the law requires that at least one of the justices shall live 
within the town or city. The voters within the town or city choose a 
separate assessor. The voters of the city are not allowed to vote for road 
supervisors nor for the township assessor; they vote for all other town¬ 
ship officers. . . . 

“ The trustees of the township have various duties in the administra¬ 
tion of the poor laws. An able-bodied person applying for aid may be 


1 Justices are elected by the people for five years, and commissioned by the 
governor of the State. 



CHAP. XLVIII 


LOCAL GOVERNMENT 


615 


required to work upon the streets or highways. If a person who has 
acquired a legal settlement in the county, and who has no near relatives 
able to support him, applies to the trustees for aid, it is their duty to look 
into the case and furnish or refuse relief. If they decide to furnish it, 
they may do so by sending the person to the county poorhouse, or by giv¬ 
ing him what they think needful in food, clothing, medical attendance, or 
money. If they refuse aid, the applicant may go to the county super¬ 
visors, and they may order the trustees to furnish aid; or if the supervis¬ 
ors think the trustees are giving aid unwisely, they may order them to 
withhold it. In all cases where aid is furnished directly by the trustees 
to the applicant they are required to send a statement of the expense 
incurred to the auditor of the county, who presents the bills to the board 
of supervisors. All bills for the relief of the poor are paid by the county, 
and the supervisors if they choose may take the entire business out of the 
hands of the trustees. But in counties where no poorhouse is provided, 
and where the supervisors make no provision for the poor, the trustees 
are required to take entire charge of the business. Yet in any case the 
county must meet the expenses. The trustees are the health officers of 
the township. They may require persons to be vaccinated ; they may 
require the removal of filth injurious to health; they may adopt bye-laws 
for preserving the health of the community and enforce them by fine and 
imprisonment.” 1 

In most of these States the county overshadows the town¬ 
ship. Taking Pennsylvania as an example, we find each county 
governed by a board of three commissioners, elected for three 
years, upon a minority vote system, the elector being allowed 
to vote for two candidates only. Besides these there are officers, 
also chosen by popular vote for three years, viz. a sheriff, coroner, 
prothonotary, registrar of wills, recorder of deeds, treasurer, 
surveyor, three auditors, clerk of the court, district attorney. 
Some of these officers are paid by fees, except in counties whose 
population exceeds 50,000, where salaries are usually provided. 
A county with at least 40,000 inhabitants is a judicial district, and 
elects its judge for a term of ten years. No new county is to con¬ 
tain less than 400 square miles or 20,000 inhabitants. 2 The 
county, besides its judicial business, with the management of the 
prisons incident thereto, and its duties as respects highways 
and bridges, has educational and usually also poor-law functions ; 
and it levies its county tax and the State taxes through a collector 
for each township whom it and not the township appoints. It 
audits the accounts of townships, and has other rights of control 

1 Our Government: a Text-Book for Iowa Schools, pp. 21—23. 

2 See Constitution of Pennsylvania of 1873, Arts, xiv., xiii., and v. 

The average population of a county in Pennsylvania was, in 1910, 114,405. 
There are sixty-seven. 



616 


THE STATE GOVERNMENTS 


PART n 


over these minor communities exceeding those allowed by Michi¬ 
gan or Illinois. I must not omit to remark that where any local 
area is not governed by a primary assembly of all its citizens, 
as in those States where there is no town-meeting, and in all 
States in respect to counties, a method is frequently provided 
for taking the judgment of the citizens of the local area, be it 
township or county, by popular vote at the polls upon a specific 
question, usually the borrowing of money or the levying of a 
rate beyond the regular amount. This is an extension to local 
divisions of the so-called “plebiscitary” or referendum method, 
whose application to State legislation has been discussed in a 
preceding chapter. It seems to work well, for by providing 
an exceptional method of meeting exceptional cases, it enables 
the ordinary powers of executive officials, whether in township 
or county, to be kept within narrow limits. 

Want of space has compelled me to omit from this sketch 
many details which might interest European students of local 
government, nor can I attempt to indicate the relations of the 
rural areas, townships, and counties, to the incorporated villages 
and cities which lie within their compass further than by ob¬ 
serving that cities, even the smaller ones, are usually separated 
from the townships, that is to say, the township government is 
superseded by the city government, while cities of all grades 
remain members of the counties, bear their share in county 
taxation, and join in county elections. Often, however, the 
constitution of a State contains special provisions to meet the 
case of a city so large as practically to overshadow or absorb 
the county, as Chicago does the county of Cook, and Cincin¬ 
nati the county of Hamilton, and sometimes the city is made 
a county by itself. 



CHAPTER XLIX 


OBSERVATIONS ON LOCAL GOVERNMENT 

It may serve to clear up a necessarily intricate description if 
I add here a few general remarks applicable to all, or nearly all, 
of the various systems of local government that prevail in the 
several States of the Union. 

I. Following American authorities, I have treated the New 
England type or system as a distinct one, and referred the 
North-western States to the mixed type. But the European 
reader may perhaps figure the three systems most vividly to 
his mind if he will divide the Union into three zones — North¬ 
ern, Middle, and Southern. In the northern, which, beginning 
at the Bay of Fundy, stretches west to Puget Sound, he will 
find a primary assembly, the Town or township meeting, in 
preponderant activity as the unit of local government. In the 
middle zone, stretching from New York to California, inclusive, 
along the fortieth parallel of latitude, he will find the township 
dividing with the county the interests and energy of the people. 
In some States of this zone the county is the more important 
organism and dwarfs the township ; in some the township seems 
to be gaining on the county; but all are alike in this, that you 
cannot lose sight for a moment of either the smaller or the larger 
area, and that both areas are governed by elected executive 
officers. The third zone includes all the southern States; 
in which the county is the predominant organism, though here 
and there school districts and even townships are growing in 
significance. 

II. Both county and township are, like nearly everything else 
in America, English institutions which have suffered a sea change. 
“The Southern county is an attenuated English shire with the 
towns left out.” 1 The Northern township is an English seven¬ 
teenth-century parish, in which age the English parish was still 

1 Professor Macy, Our Government , an admirable elementary sketch, for 
school use, of the structure and functions of the Federal and State governments. 

617 


618 


THE STATE GOVERNMENTS 


PART II 


in full working order as a civil no less than an ecclesiastical or¬ 
ganization, holding common property, and often co-extensive with 
a town. The town-meeting is partly perhaps the manor court, 
partly the English vestry ; the selectmen correspond in a way to 
the churchwardens, or select vestrymen, called back by the con¬ 
ditions of colonial life into an activity fuller than they exerted 
in England even in the seventeenth century, and far fuller than 
they retained in the nineteenth. 1 In England local self-govern¬ 
ment, except as regards the poor law, tended to decay in the smaller 
(i.e. parish or township) areas ; the greater part of such adminis¬ 
tration as these latter needed, fell either to the justices in petty 
sessions or to officials appointed by the county or by the central 
government, until the legislation of the present century began 
to create new and larger districts, especially poor law and sani¬ 
tary districts, for local administration. 2 In the wider English 
area, the county, true self-government died out with the ancient 
Shire Moot, and fell into the hands of persons (the justices 
assembled in Quarter Sessions) nominated by the Crown, on 
the recommendation of the lord-lieutenant. It was only in 1888 
that a system of elective councils was created by statute, only 
in 1894 that primary parish meetings were created in the less 
populous local areas, parish councils in those somewhat larger. 
In the American colonies the governor filled the place which the 
Crown held in England; but even in colonial days there was a 
tendency to substitute popular election for' gubernatorial nomi¬ 
nation ; and county government, obeying the universal impulse, 
is now everywhere democratic in form; though in the South, 

1 Few things in English history are better worth studying, or have exercised 
a more pervading influence on the progress of events, than the practical disap¬ 
pearance from rural England of that Commune or Gemeinde which remained 
s,o potent a factor in the economic and social as well as the political life of France 
and Italy, of Germany (including Germanic Austria) and of Switzerland. If 
Englishmen were half as active in the study of their own local institutions as 
Americans have begun to be in that of theirs, we should have had a copious 
literature upon this interesting subject. 

In England the primary meeting died out in the form of the parish 
vestry, but in 1894 a system of Parish meetings and Councils was created by 
statute and the primary meeting thereby restored in a new form to meet the 
now more democratic conditions of the country. See Chapter XXXIX., ante. 

2 However, the parish constables and way-wardens in some places continued 
to be elected by popular vote; and the manor courts and courts leet (still sur¬ 
viving in places) were semi-popular institutions. 

In counties the coroner continued to be elected by the freeholders, but in 
a.d. 1888 the appointment was transferred by statute to the newly-created 
county councils. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 619 


while slavery and the plantation system lasted, it was practically 
aristocratic in its spirit and working. 

III. In England the control of the central government — 
that is, of Parliament —- is now maintained not only by statutes 
defining the duties and limiting the powers of the various local 
bodies, but also by the powers vested in sundry departments 
of the executive, the Local Government Board, Home Office, 
and Treasury, of disallowing certain acts of these bodies, and 
especially of supervising their expenditure and checking their 
borrowing. In American States the executive departments have 
no similar functions. The local authorities are restrained partly 
by the State legislature, whose statutes of course bind them, 
but still more effectively, because legislatures are not always 
to be trusted, by the State Constitutions. These instruments 
usually — the more recent ones I think invariably — contain 
provisions limiting the amount which a county, township, village, 
school district, or other local area may borrow, and often also 
the amount of tax it may levy, by reference to the valuation of the 
property contained within its limits. They have been found 
valuable in checking the growth of local indebtedness, which 
had become, even in rural districts, a serious danger. 1 The total 
local debt (less sinking fund) was in 1902 : — 

Counties ....... $196,564,619 

School districts .. 46,188,015 

Total . . . . . . $242,752,634 

This sum bears a comparatively small proportion to the total 
debt of the several States and of the cities, which was then : — 

States .......$ 234,908,837 

Cities, villages, townships, precincts, etc. . $1,387,316,976 

County and school district debts declined eight per cent between 
1870 and 1880, whereas city indebtedness was then rapidly 
increasing. Since 1880 all three have risen, though slowly, 

i See also Chapter XLIII. on “State Finance.” These provisions are of 
course applied to cities also, which need them even more. They vary very 
much in their details, and in some cases a special popular vote is allowed to 
extend the limit. . 

In New York State, for instance, no county or city can incur a debt bring¬ 
ing its total indebtedness up to more than ten per cent of the assessed valuation 
of its real estate, and its taxation, beyond what is required to pay interest on 
the debt, shall not exceed two per cent of the assessed valuation of its real and 
personal estate. 




620 


THE STATE GOVERNMENTS 


PART ir 


except the school district debt, which grew fast. The aggregate 
debt of counties and minor civil divisions (including cities) was 
in 1902 $1,630,069,610, being $20.74 per capita, a large rise 
from 1890, when it was $14.79 per capita. 

IV. County and township or school district taxes are direct 
taxes, there being no octroi in America, and are collected along 
with State taxes in the smallest tax-gathering area, i.e. the 
township, where townships exist. 1 Local rates are not, however, 
as in England, levied on immovable property only, but also on 
personal property, or rather upon so much of it as the assessors 
can reach. Lands and houses are often assessed far below their 
true value, because the township assessors have an interest in 
diminishing the share of the county tax which will fall upon their 
township similar to the interest of the county assessors in dimin¬ 
ishing the share of the State tax to be borne by their county. 2 
Real property is taxed in the place where it is situate ; personalty 
only in the place where the owner resides. 3 But the suffrage, 
in local as well as in State and National elections, is irrespective 
of property. It goes with residence, and no citizen can vote 
in more than one place. A man may have a dozen houses or 
farms in as many cities, counties, or townships : he will vote, 
even for local purposes, only in the spot where he is held to 
reside. 

The great bulk of local expenditure is borne by local taxes. 
But in some States a portion of the county taxes is allotted to 
the aid of school districts, so as to make the wealthier districts 
relieve the burden of the poorer, and often a similar subvention 
is made from State revenues. The public schools, which are 
everywhere and in all grades gratuitous, absorb a considerable 
part of the whole revenue locally raised, 4 and in addition to 
what taxation provides they receive a large revenue from the 
lands which, under Federal or State legislation, have been set 
apart for educational purposes. 5 6 On the whole, the burden of 

1 Sometimes, however, they are paid at the county seat. 

2 As to this and the Boards of Equalization see Chapter XLIII., ante. 

3 Of course what is really the same property may be taxed in more than one 
place; e.g. a mining company may be taxed as a company in Montana, and the 
shares held by individual proprietors be possibly also taxed in the several 
States in which these shareholders reside. 

4 The total expenditure on public schools in the United States is stated by 

the United States Commissioner of Education in his annual report for 1910 as 
being, in 1909, $401,397,747. 

6 Students of economic science will hear without surprise that in some of 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 621 


taxation in rural districts is not heavy, nor is the expenditure 
often wasteful, because the inhabitants, especially under the 
town-meeting system, look closely after it. 1 

V. It is noteworthy that the Americans, who are supposed 
to be especially fond of representative assemblies, have made 
little use of representation in their local government. The 
township is usually governed either by a primary assembly of 
all citizens or else, as in such States as Ohio and Iowa, by a 
very small board, not exceeding three, with, in both sets of cases, 
several purely executive officers. 2 In the county there is seldom 
or never a county board possessing legislative functions (though 
New York has begun to tend that way), usually only three 
commissioners or supervisors with some few executive or judicial 
officers. Local legislation (except as it appears in the bye-laws 
of the town-meeting or selectmen) is discouraged. The people 
seem jealous of their county officials, electing them for short 
terms, and restricting each to a special range of duties. This 
is perhaps only another way of saying that the county, even in the 
South, has continued to be an artificial entity, and has drawn to 
itself no great part of the interest and affections of the citizens. 
Over five-sixths of the Union each county presents a square 
figure on the map, with nothing distinctive about it, nothing 
“natural” about it, in the sense in which such English counties 
as Kent or Cornwall are natural entities. It is too large for the 
personal interest of the citizens : that goes to the township. It 
is too small to have traditions which command the respect or 
touch the affections of its inhabitants : these belong to the State. 3 

VI. The chief functions local government has to discharge in 
the United States may be summarized in a few paragraphs : — 

Making and repairing roads and bridges. — These prime ne¬ 
cessities of rural life are provided for by the township, county, 

the States which have the largest permanent school fund the effect on the effi¬ 
ciency of the schools, and on the interest of the people in them, has been per¬ 
nicious. In education, as well as in eleemosynary and ecclesiastical matters, 
endowments would seem to be a very doubtful benefit. 

1 Expenditure has, however, greatly risen. In the Massachusetts town of 
Quincy, for instance, the average annual levy of taxation between 1792 and 
1800 was $1000, about $1 to each inhabitant taxpayer: it was in 1892, $12.57. 
In 1792 the education of each child in the public school cost $3 per annum: in 
1892 it cost $16 {The Centennial Milestone, by Charles F. Adams). 

2 In a few Western States the Town board has (like the New England select¬ 
men) a limited taxing power, as well as administrative duties. 

3 In Virginia there used to be a county feeling resembling that of England, 
but this vanished in the social revolution that has transformed the South. 



622 


THE STATE GOVERNMENTS 


PART II 


or State, according to the class to which a road or bridge be¬ 
longs. That the roads of America are proverbially ill-built and 
ill-kept is due partly to the climate, with its alternations of severe 
frost, occasional torrential rains (in the Middle and Southern 
States), and long droughts; partly to the hasty habits of the 
people, who are too busy with other things, and too eager to use 
their capital in private enterprises to be willing to spend freely 
on highways ; partly also to the thinness of population, which is, 
except in a few manufacturing districts, much less dense than in 
Western Europe. In many districts railways have come before 
roads, so roads have been the less used and cared for. 1 

The administration of justice was one of the first needs which 
caused the formation of the county : and matters connected with 
it still form a large part of county business. The voters elect a 
judge or judges, and the local prosecuting officer, called the dis¬ 
trict attorney, and the chief executive officer, the sheriff. 2 Prisons 
are a matter of county concern. Police is always locally regu¬ 
lated, but in the Northern States more usually by the township 
than by the county. However, this branch of government, so 
momentous in continental Europe, is in America comparatively 
unimportant outside the cities. The rural districts get on nearly 
everywhere with no guardians of the peace, beyond the township 
constable; 3 nor do most of the State governments, except, of 
course, through statutes, exercise any control over local police 
administration. 4 In the rural parts of the Eastern and Middle 
States property is as safe as anywhere in the world. In such 
parts of the West as are disturbed by dacoits, or by solitary 
highwaymen, travellers defend themselves, and, if the sheriff 
is distant or slack, lynch law may usefully be invoked. The 
care of the poor is thrown almost everywhere upon local 
and not upon State authorities, 5 and defrayed out of local 
funds, sometimes by the county, sometimes by the town- 


1 In some parts of New England and New York, and conspicuously in New 
Jersey, there has been of late years a great improvement in the roads, and 
several States have constructed State roads equal to those of France. 

2 The American sheriff remains something like what the English sheriff was 
before his wings were clipped by legislation early in the nineteenth century. 
Even then, however, he mostly acted by deputy. The justices and the county 
police have since that legislation largely superseded his action. 

3 Or, in States with no townships, some corresponding officer. 

4 As to recent .experiments, see p. 499, ante, State police. 

6 In some States there are poor-law superintendents, and usually State in¬ 
stitutions for particular classes of paupers, e.g. pauper lunatics. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 623 


ship. The poor laws of the several State3 differ in so many 
particulars that it is impossible to give even an outline oi 
them here. Little out-door relief is given, though in most 
States the relieving authority may, at his or their discretion, 
bestow it; and pauperism is not, and has never been, a serious 
malady, except in some few of the greater cities, where it is 
vigorously combated by volunteer organizations largely com¬ 
posed of ladies. The total number of persons returned as alms¬ 
house-paupers in the whole Union was, in 1880, 73,045, and in 
1910, 84,419. There are no trustworthy statistics regarding the 
number of persons receiving out-door relief over the country as 
a whole, but it is extremely small, being 1.014 per thousand to 
the estimated population. 

Sanitation, which has become so important a department of 
English local administration, plays a small part in the rural 
districts of America, because their population is so much more 
thinly spread over the surface that the need for drainage and 
the removal of nuisances is less pressing ; moreover, as the hum¬ 
bler classes are better off, unhealthy dwellings are far less com¬ 
mon. Public health officers and sanitary inspectors would, over 
the larger part of the county, have little occupation. 1 

To education, I can refer only in passing, because the differ¬ 
ences between the arrangements of the several States are too 
numerous to be described here. It has hitherto been not only 
a more distinctively local matter, but one relatively far more 
important than in England, France, or Italy. And there is 
usually a special administrative body, often a special adminis¬ 
trative area, created for its purposes — the school committee 
and the school district. 2 The vast sum expended on public 
instruction has been already mentioned. Though primarily 
dealt with by the smallest local circumscription, there is a 
growing tendency for both the county and the State to interest 
themselves in the work of instruction by way of inspection, 
and to some extent of pecuniary subventions. Not only does 
the county often appoint a county superintendent, but there are 
in some States county high schools and (in most) county boards 


1 Sanitation, however, has received much attention in the cities, and the 
death rate has in many been greatly reduced. 

2 Though the school district frequently coincides with the township, it has 
generally (outside of New England) distinct administrative officers, and when 
it coincides it is often subdivided into lesser districts. 




624 


THE STATE GOVERNMENTS 


PART I! 


of education, besides a State Board of Commissioners . 1 I need 
hardly add that the schools of all grades are more numerous and 
efficient in the northern and western than in the southern States, 
which are still comparatively poor, where the population is 
seldom dense, and where it is deemed needful to separate white 
and coloured children. In old colonial days, when the English 
Commissioners for Foreign Plantations asked for information 
on the subject of education from the governors of Virginia and 
Connecticut, the former replied, “I thank God there are no free 
schools or printing presses, and I hope we shall not have any 
these hundred years ; ” 2 and the latter, “ One-fourth of the annual 
revenue of the colony is laid out in maintaining free schools for 
the education of our children.” The disparity was prolonged and 
intensified in the South by the existence of slavery. Now that 
slavery has gone, the South makes rapid advances; but the 
proportion of illiteracy, especially of course among the negroes, 
is still high . 3 

It will be observed that of the general functions of local 
government above described, three, viz. police, sanitation, and 
poor relief, are simpler and less costly than in England, and 
indeed in most parts of western ard central Europe. It has 
therefore proved easier to vest the management of all in the 
same local authority, and to get on with a smaller number of 
special executive officers. Education is indeed almost the 
only matter which has been deemed to demand a special body to 
handle it. Nevertheless, even in America the increasing com- 

1 In some States provision is made for the combination of several school 
districts to maintain a superior school at a central spot. 

2 Governor Sir William Berkeley, however, was among the Virginians who 
in 1660 subscribed for the erection in Virginia of “a college of students of the 
liberal arts and sciences.” As to elementary instruction he said that Virginia 
pursued “the same course that is taken in England out of towns, every man 
according to his ability instructing his children. We have forty-eight, parishes, 
and our ministry are well paid, and, by consent, should be better if they would 
pray oftener and preach less.” — The College of William and Mary , by Dr. H. B. 
Adams. 

3 The percentage of illiterate persons at least 10 years of age to the whole 
population of Continental United States was, in 1900, 10.7, and in 1910, 7.7 (of 
white population, 5.0, of negroes, 30.4) ; it was highest in Louisiana, 29.0, and 
South Carolina, 25.7 ; lowest in Iowa, 1.7 ; and Nebraska and Oregon, each 1.9. 

It was once proposed in Congress to reduce the surplus in the U. S. treasury 
by distributing sums among the States in aid of education, in proportion to the 
need which exists for schools, i.e. to their illiteracy. The objections on the 
score of economic policy, as well as of constitutional law, were obvious, and 
stimulated a warm resistance to the bill. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 625 


plexity of civilization, and the growing tendency to invoke 
governmental aid for the satisfaction of wants not previously 
felt, or if felt, met by voluntary action, tend to enlarge the 
sphere and multiply the functions of local government. 

VII. How far has the spirit of political party permeated 
rural local government ? I have asked myself this question a 
hundred times in travelling through America, yet I find it hard 
to give any general answer, because there are great diversities in 
this regard not only between different States, but between dif¬ 
ferent parts of the same State, diversities due sometimes to the 
character of the population, sometimes to the varying intensity 
of party feeling, sometimes to the greater or less degree in which 
the areas of local government coincide with the election districts 
in which State senators or representatives are chosen. On the 
whole it would seem that county officials are apt to be chosen 
on political lines, not so much because any political questions 
come before them, or because they can exert much influence on 
State or Federal elections, as because these paid offices afford 
a means of rewarding political services and securing political 
adhesions. Each of the great parties usually holds its county 
convention and runs its “ county ticket/’ with the unfortunate 
result of intruding national politics into matters with which they 
have nothing to do, and of making it more difficult for good citi¬ 
zens outside the class of professional politicians to find their 
way into county administration. However, the party candidates 
are seldom bad men, and the ordinary voter is less apt to vote 
blindly for the party nominee than he would be in Federal or 
State elections. In the township and rural school district party 
spirit is much less active. The offices are often unpaid, and the 
personal merits of the candidates are better known to the voters 
than are those of the politicians who seek for county office . 1 
Rings and Bosses (of whom more anon) are not unknown even in 
rural New England. School committee elections are often influ¬ 
enced by party affiliations. But on the whole, the township and 
its government keep themselves pretty generally out of the 
political whirlpool: their posts are filled by honest and reasonably 
competent men. 

VIII. The apparent complexity of the system of local gov- 


1 Sometimes the party “ticket” leaves a blank space for the voter to insert 
the name of the candidates for whom he votes for township offices. 


2 s 



626 


THE STATE GOVERNMENTS 


PART II 


ernment sketched in the last preceding chapter is due entirely 
to the variations between the several States. In each State it 
is, as compared with that which rural England had before 1888, 
eminently simple. There are few local divisions, few authorities ; 
the divisions and authorities rarely overlap. No third local 
area and local authority intermediate between township and 
county, and similar to the English Rural District with its 
Council, has been found necessary. Especially simple is the 
method of levying taxes. In most States a citizen pays at the 
same time, to the same officer, upon the same paper of demand, 
all his local taxes, and not only these, but also his State tax; in 
fact, all the direct taxes which he is required to pay. The State 
is spared the expense of maintaining a separate collecting staff, 
for it leans upon and uses the local officials who do the purely 
local work. The tax-payer has not the worry of repeated calls 
upon his cheque-book. 1 Nor is this simplicity and activity of 
local administration due to its undertaking fewer duties, as 
compared with the State, than is the case in Europe. On the 
contrary, the sphere of local government is in America unusually 
wide, 2 and widest in what maybe called the most characteristically 
American and democratic regions, New England and the North- 
West. Americans often reply to the criticisms which Europeans 
pass on the faults of their State legislatures and the shortcomings 
of Congress by pointing to the healthy efficiency of their rural 
administration, which enables them to bear with composure the 
defects of the higher organs of government, defects which would 
be less tolerable in a centralized country, where the national 
government deals directly with local affairs, or where local 
authorities await an initiative from above. 

Of the three or four types or systems of local government 
which I have described, that of the Town or township with its 
popular primary assembly has been the best. It is the cheapest 
and the most efficient; it is the most educative to the citizens 
who bear a part in it. The town-meeting has been not only the 
source but the school of democracy. 3 The action of so small a 

1 City taxes, however, and the local school tax, are sometimes paid sepa¬ 
rately. Some States give the option of paying half-yearly or quarterly; and 
many allow discount upon payment in advance. 

2 The functions are not perhaps so numerous as in England, but this is be¬ 
cause fewer functions are needed. The practical competence of local authori¬ 
ties for undertaking any new functions that may become needed, and which 
the State may entrust to them, is deemed sufficient. 

3 In Rhode Island it was the Towns that made the State. 



chap, xlix OBSERVATIONS ON LOCAL GOVERNMENT 621 


unit needs, however, to be supplemented, perhaps also in some 
points supervised, by that of the county, and in this respect the 
mixed system of the Middle States is deemed to have borne its 
part in the creation of a more perfect type. For some time past 
an assimilative process has been going on over the United States 
tending to the evolution of such a type. 1 In adopting the town¬ 
ship system of New England, the North-western States have 
borrowed some of the attributes of the Middle States county 
system. The Middle States have developed the township into 
a higher vitality than it formerly possessed there. Some of the 
Southern States are introducing the township, and others are 
likely to follow as they advance in population and education. 
It is possible that by the middle or end of the twentieth century 
there will prevail one system, uniform in its outlines over the 
whole country, with the township for its basis, and the county 
as the organ called to deal with those matters which, while they 
are too large for township management, it seems inexpedient 
to remit to the unhealthy atmosphere of a State capital. 

1 This tendency is visible not least as regards the systems of educational 
administration. The National Teachers’ Association of the United States not long 
since prepared an elaborate report on the various existing systems, and the 
more progressive States are on the alert to profit by one another’s experience. 



CHAPTER L 


THE GOVERNMENT OF CITIES 

The growth of great cities has been among the most signifi¬ 
cant and least fortunate changes in the character of the popu¬ 
lation of the United States during the century that has passed 
since 1787. The census of 1790 showed only five cities with 
more than 8000, and only one with more than 33,000 inhabit¬ 
ants. In 1880 there w^ere 286 exceeding 8000, forty-five exceed¬ 
ing 40,000, nineteen exceeding 100,000 ; while the census of 1910 
showed 774 exceeding 8000, 228 exceeding 25,000, 50 exceeding 
100,000. The ratio of persons living in cities exceeding 8000 
inhabitants to the total population was, in 1790, 3.35 per cent, in 
1840, 8.52, in 1880, 22.57, in 1890, 29.12, in 1910, 38.74 per cent. 
And this change has gone on with accelerated speed notwith¬ 
standing the enormous extension of settlement over the vast 
regions of the West. Needless to say that a still larger and in¬ 
creasing proportion of the wealth of the country is gathered into 
the larger cities. Their government is therefore a matter of high 
concern to America, and one which cannot be omitted from a 
discussion of transatlantic politics. Such a discussion is, how¬ 
ever, exposed to two difficulties. One is that the actual working 
of municipal government in the United States is so inextricably 
involved with the party system that it is hard to understand 
or judge it without a comprehension of that system, an account 
of which I am, nevertheless, forced to reserve for subsequent 
chapters. The other is that the laws which regulate municipal 
government are even more diverse from one another than those 
whence I have drawn the account already given of State govern¬ 
ments and rural local government. For not only has each State 
its own system of laws for the government of cities, but within 
a State there is, as regards the cities, little uniformity in municipal 
arrangements. Larger cities are often governed differently 
from the smaller ones ; and one large city is differently organized 

628 


CHAP. L 


THE GOVERNMENT OF CITIES 


629 


from another. So far as the legal arrangements go, no general 
description, such as might be given of English municipal govern¬ 
ments under the Municipal Corporation Acts, is possible in 
America. I am therefore obliged to confine myself to a few 
features common to most city governments, occasionally taking 
illustrations from the constitution or history of some one or other 
of the leading municipalities. 

The history of American cities, though striking and instruc¬ 
tive, has been short. Of the ten greatest cities of to-day only 
three — Baltimore, New York, and Philadelphia — were munici¬ 
pal corporations in 1820. 1 Every city has received its form of 
government from the State in which it stands, and this form has 
been repeatedly modified. Formerly each city obtained a spe¬ 
cial charter; now in nearly all States there are general laws 
under which a population of a certain size and density may be 
incorporated. Yet, as observed above, special legislation for 
particular cities, especially the greater ones, continues to be very 
frequent. 

Although American city governments have a general resem¬ 
blance to those English municipalities which were their first 
model, 2 their present structure shows them to have been much 
influenced by that of the State governments. We find in most of 
the larger cities 3 — 

A mayor, head of the executive, and elected directly by the 
voters within the city. 

Certain executive officers or boards, some directly elected by 
the city voters, others nominated by the mayor or chosen 
by the city legislature. 

A legislature, consisting usually of two, but sometimes of 
one chamber, directly elected by the city voters. 

Judges, usually elected by the city voters, but sometimes 
appointed by the State or (as to some judges) by the 
Mayor. 

1 The term “city” denotes in America what is called in England a munici¬ 
pal borough, and has nothing to do with either size or antiquity. The con¬ 
stitution or frame of government of a city is called its charter and is given by a 
State statute, general or special, or else is enacted by the city itself under 
powers given to it by the State. 

i 2 American municipalities have, of course, never been, since the Revolution, 
close corporations like most English boroughs before the Act of 1835. 

3 This statement would have been universally true before the recent adop¬ 
tion in a constantly increasing number of cities of the plan of government 
by a small board of commissioners. 



630 


THE STATE GOVERNMENTS 


PART II 


What is this but the frame of a State government applied to 
the smaller area of a city? The mayor corresponds to the 
Governor, the officers or boards to the various State officials 
and boards (described in Chapter XLI) elected, in most cases, 
by the people; the aldermen and common council (as they are 
generally called) to the State Senate and Assembly; the city 
elective judiciary to the State elective judiciary. 1 

A few words on each of these municipal authorities. The 
mayor is by far the most conspicuous figure in city governments, 
much more important than the mayor of an English or Irish 
borough, or the provost of a Scotch one. He holds office, some¬ 
times for one year, but now more frequently for two, three, or 
four years. The general tendency is toward a four-year term, 
as in New York, Baltimore, Chicago, Philadelphia, Boston, and 
St. Louis. In some cities he is not re-eligible. He is directly 
elected by the people of the whole city, and is usually not a mem¬ 
ber of the city legislature. 2 He has, almost everywhere, a veto 
on all ordinances passed by that legislature, which, however, can 
be overridden by a two-thirds majority. In many cities he 
appoints some among the heads of departments and adminis¬ 
trative boards, though frequently the approval of the legisla¬ 
ture or of one branch of it 3 is required. Quite recently some 
city charters have gone so far as to make him generally respon¬ 
sible for all the departments (subject to the control of supply 
by the legislative body), and therewith liable to impeachment 
for misfeasance. 4 He receives a considerable salary, varying 
with the size of the city, and in New York City reaching $15,000. 
It rests with him, as the chief executive officer, to provide for the 
public peace, to quell riots, and, if necessary, to call out the mili¬ 
tia. He often exerts, in practice, some discretion as to the en¬ 
forcement of the law ; he may, for instance, put in force Sunday 
Closing Acts or regulations, or omit to do so. 

The practical work of administration is carried on by a num- 

1 American municipal governments are of course subject to three general 
rules: that they have no powers other than those conferred on them by the 
State, that they cannot delegate their powers, and that their legislation and 
action generally is subject to the Constitution of the United States as well as to 
the Constitution and statutes of the State to which they belong. 

2 In Chicago and San Francisco the mayor sits in the legislature. 

3 In New York and Boston the mayor appoints and removes heads of de¬ 
partments, and the tendency is generally toward an increase of his powers. 

4 Much complexity has arisen from the practice of giving special charters to 
particular cities, or passing special bills relating to them, and there is now a 
tendency to empower cities to make their own charters. 



CHAP. L 


THE 'GOVERNMENT OF CITIES 


631 


ber of departments, sometimes under one head, sometimes con¬ 
stituted as boards or commissions. The most important of 
these are directly elected by the people, for a term of one, two, 
three, or four years. Some, however, are chosen by the city 
legislature, some by the mayor with the approval of the legis¬ 
lature or its upper chamber. In most cities the chief executive 
officers have been disconnected from one another, owing no 
common allegiance, except that which their financial dependence 
on the city legislature involves, and communicating less with 
the city legislature as a whole than with its committees, each 
charged with some one branch of administration, and each apt 
to job it. 

Education has been generally treated as a distinct matter, 
with which neither the mayor nor the city legislature has been 
suffered to meddle. It is committed to a Board of Education, 
whose members are separately elected by the people, or, appointed 
by the mayor, levy (though they do not themselves collect) 
a separate tax, and have an executive staff of their own at 
their disposal . 1 

The city legislature usually consists in small cities of one cham¬ 
ber, in large ones sometimes of two, the upper of which generally 
bears the name of the Board of Aldermen, the lower that of the 
Common Council . 2 All are elected by the citizens, generally 
in wards, but the upper house occasionally by districts or on 
what is called a “general ticket/’ i.e. a vote over the whole 
city . 3 Usually the common council is elected for one year, or 

1 There are some points of resemblance in this system to the government of 
English cities, and especially of London. The English common councils elect 
certain officials and manage their business by committees. In the ancient 
City of London the sheriffs and chamberlain are elected by the liverymen. 
Note, however, that in no English borough or city do we find a two-chambered 
legislature, nor (except as last aforesaid in London) officials elected by popular 
vote, nor a veto on legislation vested in the mayor. London (outside the ancient 
city which retains a separate government) is now governed by an elected as¬ 
sembly called the County Council, and by the elected Councils of the boroughs 
into which it is divided. 

2 Some large cities, however ( e.g . Greater New York, Chicago with its 36 
aldermen, San Francisco with its 12 supervisors), have only one chamber. 

3 In some few cities, among which are Chicago and (as respects police magis¬ 
trates and school directors) Philadelphia, the plan of minority representation 
has been to some extent adopted by allowing the voter to cast his vote for 
two candidates only when there are three places to be filled. It was tried in 
New York, but the State Court of Appeals held it unconstitutional. So far 
as I can ascertain, this method has in Philadelphia proved rather favourable 
than otherwise to the “machine politicians,” who can rely on their masses of 
drilled voters, obedient to orders. 



632 


THE STATE GOVERNMENTS 


PART II 


at most for two years, the upper chamber frequently for a 
longer period. 1 Both are usually unpaid in the smaller cities, 
sometimes paid in the larger. All city legislation, that is to 
say, ordinances, bye-laws, and votes of money from the city 
treasury, are passed by the council or councils, subject in many 
cases to the mayor’s veto. Except in a few cities governed by 
recent charters, the councils have some control over at least the 
minor officials. Such control is exercised by committees, a 
method borrowed from the State and national legislatures, and 
suggested by the same reasons of convenience which have estab¬ 
lished it there, but proved by experience to have the evils of 
secrecy and irresponsibility as well as that of disconnecting the 
departments from one another. 

The city judges are only in so far a part of the municipal 
government that in most of the larger cities they are elected 
by the citizens, like the other chief officers. There are usually 
several superior judges, chosen for terms of five years and 
upwards, and a larger number of “police justices ” or “city mag¬ 
istrates,” 2 generally for shorter terms. Occasionally, however, 
the State has prudently reserved to itself the appointment of 
judges. Thus in New Haven, Connecticut (population in 1910, 
133,605) — 

“ Constables, justices of the peace, and a sheriff are elected by the 
citizens, but the city courts derive existence directly from the State 
legislature. . . . The mode of selecting judges is this : the New Haven 
county delegation to the dominant party in the legislature assembles in 
caucus and nominates two of the same political faith to be respectively 
judge and assistant judge of the New Haven city court. Their choice is 
adopted by their party, and the nominations are duly ratified, often by a 
strict party vote. Inasmuch as the legislature is usually Republican, and 
the city of New Haven is unfailingly Democratic, these usages amount to 
a reservation of judicial offices from the ‘hungry and thirsty’ local ma¬ 
jority, and the maintenance of a certain control by the Republican coun¬ 
try towns over the Democratic city.” 3 


1 Sometimes the councilman is required by statute to be a resident in the 
ward he represents. 

2 Sometimes the police justices are nominated by the mayor. 

3 “During the session of the legislature in March, 1885, this argument was 
put forward in answer to a Democratic plea for representation upon the city 
court bench. ‘The Democrats possess all the other offices in New Haven. It’s 
only fair that the Republicans should have the city court.’ Each party ac¬ 
cepted the statement as a conclusive reason for political action. It would be 
gratifying to find the subject discussed upon a higher plane, and the incum¬ 
bents of the offices who had done well continued from term to term without 



CHAP. L 


THE GOVERNMENT OF CITIES 


633 


It need hardly be said that all the above officers, from the 
mayor and judges downwards, are, like State officers, elected 
by manhood suffrage. Their election is often made to coincide 
with that of State officers, perhaps also of Federal congressmen. 
This saves expense and trouble. But as it not only bewilders 
the voter in his choice of men by distracting his attention be¬ 
tween a large number of candidates and places, but also con¬ 
firms the tendency, already strong, to vote for city officers on 
party lines, there has of late years been a tendency to have 
the municipal elections fixed for a different date from that of 
State or Federal elections, so that the undistracted and non¬ 
partisan thought of the citizens may be given to the former. 1 

At present the disposition to run and vote for candidates 
according to party is practically universal, although the duty 
of party loyalty is deemed less binding than in State or Federal 
elections. When both the great parties put forward questionable 
men, a non-partisan list, or so-called “citizens’ ticket/’ may be 
run by a combination of respectable men of both parties. Some¬ 
times this attempt succeeds. However, though the tenets of 
Republicans and Democrats have absolutely nothing to do with 
the conduct of city affairs, though the sole object of the election, 
say of a city comptroller or auditor, may be to find an honest 
man of good business habits, four-fifths of the electors in nearly 
all cities give little thought to the personal qualifications of the 
candidates, and vote the “straight ticket.” 

Early in the present century a new form of municipal govern¬ 
ment began to spread through the country. The City of Galves¬ 
ton in Texas had been struck by a tidal wave, which did frightful 
damage, and the people in order to deal with the emergency ap¬ 
pointed three commissioners to handle city business ad interim. 
The plan succeeded so well that it was permanently adopted, 
and the Galveston charter of 1901 provides a body of five corn- 

regard to party affiliations. But in the present condition of political morals, 
the existing arrangements are probably the most practicable that could be 
made. It goes without saying that country districts are, as a rule, more deserv¬ 
ing of political power than are cities. If the city judges were locally elected 
upon the general party ticket, the successful candidates would often be under 
obligations to elements in the community which are the chief source and nurse 
of the criminal class— an unseemly position for a judge.” — Mr. Charles H. 
Levermore in his interesting sketch of the Town and City Government of New 
Haven (p. 77). 

1 On the other hand, there are cities which hope to draw out a larger vote, 
and therefore obtain a better choice, by putting their municipal elections at 
the same time as the State elections, 



634 


THE STATE GOVERNMENTS 


PART II 


missioners, elected by the voters at large for two years, one being 
Mayor, president of the Board, and each of the others having 
a special department of city businesss allotted to him. The 
Commission as a whole passes ordinances, votes the annual 
budget, gives out contracts, and makes the principal appoint¬ 
ments, upon the nomination of the Commissioner in whose de¬ 
partment the appointment lies. Under this form of govern¬ 
ment marked improvements have been effected in every branch 
of municipal work, and the whole floating debt has been paid 
off. The city owns its waterworks, sewer plant, and electric 
light plant. The large city of Des Moines in Iowa subse¬ 
quently, under a general State law permitting cities to frame for 
themselves their schemes of government, enacted generally a 
similar plan in which the four commissioners who serve with 
the Mayor have (1) accounts and finance, (2) public safety, 
(3) streets and public improvements, (4) parks and public prop¬ 
erty, as their several provinces. One-fourth of the voters can 
demand a Recall Vote, and all grants of franchises, as well as 
ordinances not of an urgent character, have to be submitted to 
a Referendum vote. The example of these two cities has been 
so largely followed that in 1913 there were 371 cities, including 
some in the Eastern States, in which the plan was in opera¬ 
tion, while several States have passed statutes permitting 
their cities to adopt it. So far, it seems to be working well, 
though the elections “ at large ” in which party has been to a 
considerable extent eliminated, sometimes give odd results. 1 

The functions of city governments may be distributed into 
three groups — (a) those which are delegated by the State out 
of its general coercive and administrative powers, including 
the police power, the granting of licences, the execution of laws 
relating to adulteration and explosives ; ( b ) those which though 
done under general laws are properly matters of local charge and 
subject to local regulation, such as education and the care of the 
poor; and (c) those which are not so much of a political as of a 
purely business order, such as the paving and cleansing of streets, 
the maintenance of proper drains, the provision of water and 
light. In respect of the first, and to some extent of the second of 
these groups, the city may be properly deemed a political entity ; 

1 There are many varieties of the plan, the number of Commissioners being 
sometimes larger than four. In some cities one Commissioner is elected annu¬ 
ally, so that the whole Board never goes out of office together. 



CHAP. L 


THE 'GOVERNMENT OF CITIES 


635 


in respect of the third it is rather to be compared to a business 
corporation or company, in which the tax-payers are shareholders, 
doing, through the agency of the city officers, things which each 
might do for himself, though with more cost and trouble. All 
three sets of functions are dealt with by American legislation 
in the same way, and are alike given to officials and (where 
the Commission plan has not been adopted) a legislature 
elected by persons of whom a large part pay no direct taxes. 
Education, however, is usually detached from the general city 
government and entrusted to a separate authority, 1 while in 
some cities the control of the police has been withheld or with¬ 
drawn from that government, and conferred upon a separate 
board. 2 The most remarkable instance is that of Boston in 
which city a Massachusetts statute of 1885 entrusted the police 
department and the power to license, regulate, and restrain the 
sale of intoxicating liquors, to a special board of three persons, 
to be appointed for five years by the State governor and council. 
Both political parties are directed by the statute to be represented 
on the board. (This is a frequent provision in recent charters.) 
The city pays on the board’s requisition all the expenses of the 
police department. In New York the police commissioners were 
for a time appointed by the mayor, but in order to “take the 
department out of politics” an unwritten understanding was 
established that he, though himself always a partisan, should 
appoint two Democratic and two Republican commissioners. 3 
The post of policeman has been “spoils” of the humbler order, 
but spoils sometimes equally divided between the parties. 

Taxes in cities, as in rural districts, are levied upon personal 
as well as real property ; and the city tax is collected along with 
the county tax and State tax by the same collectors. There 
are, of course, endless varieties in the practice of different States 
and cities as to methods of assessment and to the minor imposts 
subsidiary to the property tax. Both real and personal property 
are usually assessed far below their true value, the latter because 
owners are reticent, the former because the city assessors are 


1 Though sometimes, as in Baltimore, the city legislature appoints a Board 
of Education. Unhappily, in some cities education is “within politics,” and, 
as may be supposed, with results unfavourable to the independence and even 
to the quality of the teachers. 

2 So in Baltimore and St. Louis. 

3 Now under the new charter of Greater New York there is one commis¬ 
sioner appointed by the mayor. 



636 


THE STATE GOVERNMENTS 


PART II 


anxious to take as little as possible of the State and county burden 
on the shoulders of their own community, though in this patriotic 
effort they are checked by the county and State Boards of Equali¬ 
zation. Taxes are usually so much higher in the larger cities 
than in the country districts or smaller municipalities, that there 
is a strong tendency for rich men to migrate from the city to its 
suburbs in order to escape the city collector. Perhaps the city 
overtakes them, extending its limits and incorporating its sub¬ 
urbs ; perhaps they fly farther afield by the railway and make 
the prosperity of country towns twenty or thirty miles away. 
The unfortunate consequence follows, not only that the taxes 
are heavier for those who remain in the city, but that the philan¬ 
thropic and political work of the city loses the participation of 
those who ought to have shared in it. For a man votes in one 
place only, the place where he resides and pays taxes on his per¬ 
sonalty ; and where he has no vote, he is neither eligible for local 
office nor deemed entitled to take a part in local political agita¬ 
tion. 

Among the great cities, one of those which have recently 
given themselves a new frame of government is Boston (popu¬ 
lation in 1910, 670,585). The main features of that scheme, 
which came into force in 1909, are as follows : — 

The government of the city is now in the hands of a mayor, 
elected by the voters for a term of four years, and a single council 
of nine members similarly elected for a three-year term. Three 
councillors retire annually. 

The Mayor. Nominations to the office of mayor may be 
made only by petitions signed by at least 5000 qualified voters 
of the city, these signatures to be obtained upon official forms 
and verified by affidavit. No voter may sign more than one 
petition. The petitions must be filed with the Election Commis¬ 
sioners (who are appointed by the mayor) at least twenty-five 
days prior to the date of the municipal election. The signatures 
are then scrutinized by these Election Commissioners and not 
less than sixteen days before the date of the election the commis¬ 
sioners announce the names of those candidates whom they have 
found to have been validly nominated. Such names are then 
placed upon an official ballot, without party designation, and 
in an order of names determined by lot. The municipal election 
takes place on the Tuesday after the second Monday in January, 
and the city’s fiscal year begins on the first Monday in February. 



CHAP. L 


THE GOVERNMENT OF CITIES 


637 


Although the mayor is elected for a four-year term, provision 
is made for his Recall (i.e. dismissal) at the end of two years. 
The regular State election is used to provide the machinery for 
this recall; but in order to be effective the recall must secure, at 
this election, a majority of the total enrolled votes, not merely 
a majority of the polled votes. This means in practice that 
about two-thirds of the polled votes are necessary in order to 
recall a mayor, and it ought to be emphasized that this recall 
may be put into operation only at one stage in the mayor’s 
term, namely, at the point where half his term has been served. 
The salary of the mayor is $10,000 per annum. 

The mayor appoints all heads of city departments whose 
appointments are not otherwise provided for ; and appointments 
made by the mayor are not subject to confirmation by the mu¬ 
nicipal council. But appointments made by him are not valid 
unless a certificate is obtained from the State Civil Service 
Commission “that the appointee is in its opinion qualified by 
education, training, and experience for the said office.” Any 
official appointed by the mayor may be removed by him at any 
time, but he must state “in detail the specific reasons for such 
removal.” 

All recommendations for the expenditure of money must orig¬ 
inate with the mayor, and while the council may omit or reduce 
any item of expenditure he recommends, it is not empowered 
to insert or increase any such item. Any resolution or vote of 
the council may be vetoed by the mayor and such veto is final. 

The Council. The City Council consists of nine members 
elected not by wards but from the city at large. Candidates 
are placed in nomination only by petitions signed by at least 
5000 registered voters, the regulations relating to the filing and 
verification of these petitions being in all respects similar to 
those prescribed in connection with nominations for the mayor¬ 
alty. The names of candidates for election to the council are 
placed upon an official ballot in an order determined by lot and 
without any party designation. There is no provision for the 
recall of councillors before their three-year terms have expired ; 
but three of the nine councillors go out of office each year. 
Councillors are paid $1500 per annum. 

The powers of the council include the making of city ordinances, 
the approving of appropriations including the annual budget, 
the authorization of loans, and the sanctioning of certain con- 



638 


THE STATE GOVERNMENTS 


PART II 


tracts extending over more than one year. All these powers are 
exercised, however, subject to the mayor’s veto power. Author¬ 
ity to grant privileges in the streets, and franchises, permits, 
and locations, is vested in a board of three street commissioners 
appointed by the mayor, but the city council, with the mayor’s 
approval, may fix the general terms upon which such privileges 
may be granted. 

An interesting feature of Boston government is the Finance 
Commission, a body of five members appointed by the governor 
of the State. These commissioners are appointed for a five- 
year term, and one member retires annually. The chairman of 
the commission, designated by the governor, is paid $5000 per 
annum ; the other members are paid $3000 each. The Finance 
Commission is given no mandatory Or executive powers in any 
branch of city government; but it is empowered to investigate 
“any and all matters relating to appropriations, loans, expendi¬ 
tures, accounts, and methods of administration,” reporting the 
results of its investigations to the mayor, the city council, the 
governor, and the State Legislature. The commission is author¬ 
ized to employ experts to assist in its investigations, and in this 
connection may spend not more than $25,000 per year. It has 
power to compel the attendance of witnesses and the production 
of papers. 

Administrative Departments. The administration of Bos¬ 
ton is immediately conducted by some thirty different depart¬ 
ments. Most of these have a single commissioner in charge; 
but some have boards of three men. Most of the heads of depart¬ 
ments are paid ; a few of the boards are unpaid. None are elected 
by popular vote, and none are appointed by the council. Nearly 
all are appointed by the mayor, the only important exceptions 
being the police commissioner, and the board of excise commis¬ 
sioners who are appointed by the governor, and the Trustees of 
the Franklin Fund who are appointed by the Supreme Court of 
the State. All judges, including municipal justices, are in Mas¬ 
sachusetts appointed by the'State governor with the confirma¬ 
tion of his Council. 

Metropolitan Commissions. Boston is the centre of a metro¬ 
politan district comprising over thirty municipalities with a 
total population of about a million and a quarter. In order 
that certain services throughout this area should be somewhat 
co-ordinated, a number of Metropolitan Commissions have 



CHAP. L 


THE GOVERNMENT OF CITIES 


639 


been established, the members of these commissions being ap¬ 
pointed by the governor of the State. The Metropolitan Water 
and Sewerage Board has charge of the main water supply and 
trunk sewers throughout the greater part of the metropolitan 
district; and the Metropolitan Parks Commission has created 
and maintains an extensive system of parks and boulevards. 
For carrying through various undertakings which concern two 
or more municipalities (including Boston) various ad hoc com¬ 
missions have been established, such as the Charles River Basin 
Commission (composed of three members appointed by the 
governor) ; and the Boston Transit Commission (composed of 
five members appointed, three by the governor and two by the 
mayor of Boston). 

School Administration. Quite distinct from the regular 
city administration is the Boston School Committee, composed 
of five members elected for three years with provision for one 
or two members retiring each year. These are elected by pop¬ 
ular vote from the city at large, the rules relating to their nomi¬ 
nation and election being in all respects similar to those applying 
in the case of municipal councillors. 

As respect school administration, a branch of city work whose 
importance is more and more recognized; and which suffers, per¬ 
haps more than any other, from the application of Machine and 
Spoils methods, reference may be made to a change recently intro¬ 
duced into the government of the great city of St. Louis. Under 
a State statute of 1897 the Board of Education consists of twelve 
members chosen by the voters at large for six years, four members 
retiring every second year. Every member swears that he will 
consider merit and fitness only in making appointments. The 
functions of the Board, which is by common consent divided 
equally between the two parties, are chiefly those of supervision, 
executive work being left to the superintendent of schools and 
other officials. By this method education is said to have been 
“ taken out of politics/’ and the efficiency of the schools has been 
raised. 

St. Louis (population in 1910, 687,029), though it has.latterly 
had upright mayors, and often a fair upper House of its City 
Legislature, has suffered from deficient purity in its lower 
House; and in 1910 tried to use the power entrusted to it of giv¬ 
ing itself a new charter. The draft was rejected by the people. 



CHAPTER LI 


THE WORKING OF CITY GOVERNMENTS 

Two tests of practical efficiency may be applied to the gov¬ 
ernment of a city: What does it provide for the people, and 
what does it cost the people ? Space fails me to apply in de¬ 
tail the former of these tests, by showing what each city does 
or omits to do for its inhabitants; so I must be content with 
observing that in the United States generally constant complaints 
are directed against the bad paving and cleansing of the streets, 
the non-enforcement of the laws forbidding gambling and illicit 
drinking, and the control of the police generally, and in some 
places also against the sanitary arrangements, and management 
of public buildings and parks. It would appear that in the 
greatest cities there is far more dissatisfaction than exists with 
the municipal administration in such cities as Glasgow, Man¬ 
chester, Dublin, Hamburg, Lyons. 

The following indictment of the government of Philadelphia 
is somewhat exceptional in its severity, and however well founded 
as to that city, must not be taken to be typical. A memorial 
presented to the Pennsylvania legislature some time ago by a 
number of the leading citizens of the Quaker City contained these 
words : — 

“ The affairs of the city of Philadelphia have fallen into a most de¬ 
plorable condition. The amounts required annually for the payment of 
interest upon the funded debt and current expenses render it necessary to 
impose a rate of taxation which is as heavy as can be borne. 

“ In the meantime the streets of the city have been allowed to fall into 
such a state as to be a reproach and a disgrace. Philadelphia is now 
recognized as the worst-paved and worst-cleaned city in the civilized 
world. 

“ The water supply is so bad that during many weeks of the last winter 
it was not only distasteful and unwholesome for drinking, but offensive 
for bathing purposes. 

“ The effort to clean the streets was abandoned for months, and no at¬ 
tempt was made to that end until some public-spirited citizens, at their 
own expense, cleaned a number of the principal thoroughfares. 

“ The system of sewerage and the physical condition of the sewers is 

640 


chap. LI THE WORKING OF CITY GOVERNMENTS 


641 


notoriously bad — so much so as to be dangerous to the health and most 
offensive to the comfort of our people. 

“ Public work has been done so badly that structures have had to be re¬ 
newed almost as soon as finished. Others have been in part constructed 
at enormous expense, and then permitted to fall to decay without com¬ 
pletion. 

“ Inefficiency, waste, badly-paved and filthy streets, unwholesome and 
offensive water, and slovenly and costly management, have been the rule 
for years past throughout the city government.” 1 


In most of the points comprised in the above statement 
Philadelphia was probably — and though she has been several 
times reformed since then, is still — among the least fortunate 
of American cities. He, however, who should interrogate one 
of Idle “good citizens” of Pittsburg, Cincinnati, New Orleans, 
New York, Chicago, San Francisco, would have heard then, and 
would hear now, similar complaints, some relating more to the 
external condition of the city, some to its police administration, 
but all showing that the objects for which municipal government 
exists have been very imperfectly attained. 

The other test, that of expense, is easily applied. Both the 
debt and the taxation of American cities have risen with unprece¬ 
dented rapidity, and now stand at an alarming figure. 

A table of the increase of population, valuation, taxation, 
and debt, in fifteen of the largest cities of the United States, 
from 1880 to 1905, shows the following result: — 


Increase in population 
Increase in taxable valuation 
Increase in debt . 

Increase in taxation . 


88.0 per cent. 
221.6 per cent. 
186.0 per cent. 
165.5 per cent. 


Looking at some individual cases, we find that the debt rose 
as follows : — 


Philadelphia 
Boston 
Cleveland . 
Milwaukee . 
New York . 


$54,223,850 to 
28,244,018 “ 
6,467,046 “ 
2,160,289 “ 
149,721,614 2 “ 


$69,950,640 
99,191,856 
27,685,874 
8,575,813 
647,806,295 3 


Municipal Development of Philadelphia 


Messrs. Allinson and Penrose, p. 275. 


2 Including the figures for the territory which by 1905 had been incorporated 


into Greater New York. 

3 The cost of opening or improving highways and of placing sewers in streets 
is not included in the aggregate of moneys annually levied and debt rolled up, 
because the cost of those improvements is levied directly upon the land by way 


In New York the total net funded debt was in December, 1908, $735,782,594. 


2t 







642 


THE STATE GOVERNMENTS 


PART II 


Much of this debt is doubtless represented by permanent 
improvements, yet for another large, and in some cities far 
larger, part there is nothing to show; it is due to simple waste 
or to malversation on the part of the municipal authorities. 

As respects current expenditure, New York in 1884 spent 
on current city purposes, exclusive of payments on account of 
interest on debt, sinking fund, and maintenance of judiciary, 
the sum of $20,232,786 — equal to $16.76 for each inhabitant 
(census of 1880). In Boston, in the same year, the city ex¬ 
penditure was $9,909,019 — equal to $27.30 for each inhabitant 
(census of 1880). In 1908 the total ordinary expenditure of 
New York was $156,545,148 (being $32.30 for each inhabitant) ; 
that of Boston, $17,464,573 (being $28.75 for each inhabitant). 1 

There is no denying that the government of cities is the one 
conspicuous failure of the United States. The deficiencies of 
the National government tell but little for evil on the welfare 
of the people. The faults of the State governments are insig¬ 
nificant compared with the extravagance, corruption, and mis¬ 
management which have marked the administrations of most of 
the great cities. For these evils are not confined to one or two 
cities. The commonest mistake of Europeans who talk about 
America has been to assume that the political vices which became 
notorious in New York are found everywhere. The next most 
common is to suppose that they are found nowhere else. In 
New York they had revealed themselves on the largest 
scale. They were “gross as a mountain, open, palpable.” 
But there is not a city with a population exceeding 200,000 where 
the poison germs have not sprung into a vigorous life; and in 
some of the smaller ones, down to 50,000, it needs no microscope 
to note the results of their growth. Even in cities of the third 
rank similar phenomena may occasionally be discerned, though 
there, as some one has said, the jet black of New York or San 
Francisco dies away into a harmless gray. 

For evils which appear wherever a large population is densely 
aggregated, there must be some general and widespread causes. 
What are these causes ? Adequately to explain them would 
be to anticipate the account of the party system to be given 
in the second volume of this work, for it is that party system 

1 These totals of 1908 (census report of 1905 brought up to 1908 from city 
records) include all the ordinary expenditures, but not sums paid for investment 
securities or redemption of municipal debt. 



chap. LI THE WORKING OF CITY GOVERNMENTS 


643 


which has, not perhaps created, but certainly enormously 
aggravated them, and impressed on them their specific type. 1 
I must therefore restrict myself for the present to a brief enumer¬ 
ation of the chief sources of the malady, and the chief remedies 
that have been suggested for or applied to it. No political sub¬ 
ject has been so copiously discussed of late years in America 
by able and experienced publicists, nor can I do better than 
present the salient facts in the words which some of these men, 
speaking in a responsible position, have employed. 

The New York commissioners of 1876 appointed “to devise 
a plan for the government of cities in the State of New York,” 
summed up the mischief as follows : 2 — 

“1. The accumulation of permanent municipal debt: In New York it 
was, in 1840, $10,000,000; in 1850, $12,000,000; in 1860, $18,000,000; 
in 1870, $73,000,000; in 1876, $113,000,000. 3 

“ 2. The excessive increase of the annual expenditure for ordinary 
purposes: In 1816 the amount raised by taxation was less than £ per 
cent on the taxable property; in 1850, 1.13 per cent; in 1860, 1.69 per 
cent; in 1870, 2.17 per cent; in 1876, 2.67 per cent. . . . The increase 
in the annual expenditure since 1850, as compared with the increase of 
population, is more than 400 per cent, and as compared with the increase 
of taxable property, more than 200 per cent.” 

1 See Part III., and especially Chapters LXII. and LXIII. See also the 
chapters in Vol. II. on the Tammany Ring in New York City, and the Gas 
Ring in Philadelphia. The full account given in those chapters of the phe¬ 
nomena of municipal misgovernment in the two largest cities in the United 
States seems to dispense me from the duty of here describing those phenomena in 
general. 

2 The commission, of which Mr. W. M. Evarts (afterwards senator from 
New York) was chairman, included some of the ablest men in the State, and 
its report, presented 6th March, 1877, may be said to have become classical. 
Much of it is as applicable now to great cities as it was in 1876; and I quote it 
not only in respect of its historical value, but also because no abler presentment 
of the facts has since appeared. 

3 The New York commissioners say: “The magnitude and rapid increase of 
this debt are not less remarkable than the poverty of the results exhibited as 
the return for so prodigious an expenditure. It was abundantly sufficient for 
the construction of all the public works of a great metropolis for a century to 
come, and to have adorned it besides with the splendours of architecture and 
art. Instead of this, the wharves and piers are for the most part temporary 
and perishable structures; the streets are poorly paved; the sewers in great 
measure imperfect, insufficient, and in bad order; the public buildings shabby 
and inadequate; and there is little which the citizen can regard with satisfac¬ 
tion, save the aqueduct and its appurtenances and the public park. Even these 
should not be said to be the product of the public debt; for the expense occa¬ 
sioned by them is, or should have been, for the most part already extinguished. 
In truth, the larger part of the city debt represents a vast aggregate of moneys 
wasted, embezzled, or misapplied,” 




644 


THE STATE GOVERNMENTS 


PART II 


They suggest the following as the causes : — 

1. Incompetent and unfaithful governing boards and officers. 

“ A large number of important offices have come to be filled by men 
possessing little, if any, fitness for the important duties they are called 
upon to discharge. . . . These unworthy holders of public trusts gain 
their places by their own exertions. The voluntary suffrage of their 
fellow-citizens would never have lifted them into office. Animated by 
the expectation of unlawful emoluments, they expend large sums to 
secure their places, and make promises beforehand to supporters and 
retainers to furnish patronage or place. The corrupt promises must be 
redeemed. Anticipated gains must be realized. Hence old and educated 
subordinates must be dismissed and new places created to satisfy the 
crowd of friends and retainers. Profitable contracts must be awarded, 
and needless public works undertaken. The amounts required to satisfy 
these illegitimate objects enter into the estimates on which taxation 
is eventually based, in fact, they constitute in many instances a superior 
lien upon the moneys appropriated for government, and not until they 
are in some manner satisfied do the real wants of the public receive atten¬ 
tion. It is speedily found that these unlawful demands, together with 
the necessities of the public, call for a sum which, if taken at once by 
taxation, would produce dissatisfaction and alarm in the community, 
and bring public indignation upon the authors of such burdens. For the 
purpose of averting such consequences divers pretences are put forward 
suggesting the propriety of raising means for alleged exceptional purposes 
by loans of money, and in the end the taxes are reduced to a figure not 
calculated to arouse the public to action, and any failure thus to raise a 
sufficient sum is supplied by an issue of bonds. ... Yet this picture 
fails altogether to convey an adequate notion of the elaborate systems of 
depredation which, under the name of city governments, have from time 
to time afflicted our principal cities; and it is moreover a just indication 
of tendencies in operation in all our cities, and which are certain, unless 
arrested, to gather increased force. It would clearly be within bounds 
to say that more than one-half of all the present city debts are the direct 
results of the species of intentional and corrupt misrule above described.” 

2. The introduction of State and national politics into mu¬ 
nicipal affairs. 

“ The formation of general political parties upon differences as to 
general principles or methods of State policy is useful, or at all events 
inevitable. But it is rare indeed that any such questions, or indeed any 
upon which good men ought to differ, arise in connection with the con¬ 
duct of municipal affairs. Good men cannot and do not differ as to 
whether municipal debt ought to be restricted, extravagance checked, 
and municipal affairs lodged in the hands of competent and faithful 
officers. There is no more reason why the control of the public works 
of a great city should be lodged in the hands of a Democrat or a Repub¬ 
lican than there is why an adherent of one or the other of the great 
parties should be made the superintendent of a business corporation. 



CHAP. LI THE WORKING OF CITY GOVERNMENTS 


645 


Good citizens interested in honest municipal government can secure that 
object only by acting together. Political divisions separate them at the 
start, and render it impossible to secure the object desired equally by 
both. . . . This obstacle to the union of good citizens paralyzes all 
ordinary efforts for good municipal government. . . . The great prizes 
in the shape of place and power which are offered on the broad fields of 
national and State politics offer the strongest incentives to ambition. 
Personal advancement is in these fields naturally associated with the 
achievement of great public objects, and neither end can be secured 
except through the success of a political party to which they are at¬ 
tached. The strife thus engendered develops into a general battle in 
which each side feels that it cannot allow any odds to the other. If one 
seeks to turn to its advantage the patronage of municipal office, the other 
must carry the contest into the same sphere. It is certain that the temp¬ 
tation will be withstood by neither. It then becomes the direct interest 
of the foremost men of the nation to constantly keep their forces in 
hostile array, and these must be led by, among other ways, the pat¬ 
ronage to be secured by the control of local affairs. . . . Next to this 
small number of leading men there is a large class who, though not dis¬ 
honest or devoid of public spirit, are led by habit and temperament to 
take a wholly partisan view of city affairs. Their enjoyment of party 
struggles, their devotion to those who share with them the triumphs and 
defeats of the political game, are so intense that they gradually lose 
sight of the object for which parties exist or ought to exist, and consider¬ 
able proportions of them in their devotion to politics suffer themselves to 
be driven from the walks of regular industry, and at last become depend¬ 
ent for their livelihood on the patronage in the hands of their chief. 
Mingled with them is nearly as large a number to whom politics is sim¬ 
ply a mode of making a livelihood or a fortune, and who take part in 
political contests without enthusiasm, and often without the pretence of 
an interest in the public welfare, and devote themselves openly to the 
organization of the vicious elements of society in combinations strong 
enough to hold the balance in a closely-contested election, overcome the 
political leaders, and secure a fair share of the municipal patronage, or 
else extort immunity from the officers of the law. . . . The rest of the 
community, embracing the large majority of the more thrifty classes, 
averse to engaging in what they deem the ‘ low business ’ of politics, or 
hopeless of accomplishing any substantial good in the face of such pow¬ 
erful opposing interests, for the most part content themselves with act¬ 
ing in accordance with their respective parties. ... It is through the 
agency of the great political parties, organized and operating as above 
described, that our municipal officers are and have long been selected. 
It can scarcely be matter of wonder then that the present condition of 
municipal affairs should present an aspect so desperate.” 

3. The assumption by the State legislature of the direct 
control of local affairs. 

“ This legislative intervention has necessarily involved a disregard of 
one of the most fundamental principles of republican government (the 



646 


THE STATE GOVERNMENTS 


PART II 


self-government of municipalities). . . . The representatives elected 
to the central (State) legislature have not the requisite time to direct the 
local affairs of the municipalities. . . . They have not the requisite 
knowledge of details. . . . When a local bill is under consideration 
in the legislature, its care and explanation are left exclusively to the 
representatives of the locality to which it is applicable; and sometimes 
by express, more often by a tacit, understanding, local bills are ‘ log¬ 
rolled’ through the houses. Thus legislative duty is delegated to the 
local representatives, who, acting frequently in combination with the 
sinister elements of their constituency, shift the responsibility for wrong¬ 
doing from themselves to the legislature. But what is even more impor¬ 
tant, the general representatives have not that sense of personal interest 
and personal responsibility to their constituents which are indispensable 
to the intelligent administration of local affairs. And yet the judgment 
of the local governing bodies in various parts of the State, and the wishes 
of their constituents, are liable to be overruled by the votes of legisla¬ 
tors living at a distance of a hundred miles. . . . To appreciate the 
extent of the mischief done by the occupation of the central legislative 
body with the consideration of a multitude of special measures relating to 
local affairs, some good, probably the larger part bad, one has only to 
take up the session laws of any year at random and notice the subjects 
to which they relate. Of the 808 acts passed in 1870, for instance, 212 
are acts relating to cities and villages, 94 of which relate to cities, and 35 
to the city of New York alone. A still larger number have reference to 
the city of Brooklyn. These 212 acts occupy more than three-fourths of 
the 2000 pages of the laws of that year. . . . The multiplicity of laws 
relating to the same subjects thus brought into existence is itself an evil 
of great magnitude. What the law is concerning some of the most im¬ 
portant interests of our principal cities can be ascertained only by the 
exercise of the patient research of professional lawyers. In many in¬ 
stances even professional skill is baffled. Says Chief-Justice Church : 
‘It is scarcely safe for any one to speak confidently on the exact con¬ 
dition of the law in respect to public improvements in the cities of New 
York and Brooklyn. The enactments referring thereto have been modi¬ 
fied, superseded, and repealed so often and to such an extent that it is 
difficult to ascertain just what statutes are in force at any particular 
time. 

“ ‘ The uncertainties arising from such multiplied and conflicting legisla¬ 
tion lead to incessant litigation with its expensive burdens, public and pri¬ 
vate.’ . . . But this is not all nor the worst. It may be true that the first 
attempts to secure legislative intervention in the local affairs of our prin¬ 
cipal cities were made by good citizens in the supposed interest of reform 
and good government, and to counteract the schemes of corrupt officials. 
The notion that legislative control was the proper remedy was a serious 
mistake. The corrupt cliques and rings thus sought to be baffled were 
quick to perceive that in the business of procuring special laws concern¬ 
ing local affairs they could easily outmatch the fitful and clumsy labours 
of disinterested citizens. The transfer of the control of the municipal 
resources from the localities to the (State) capitol had no other effect than 
to cause a like transfer of the methods and arts of corruption, and to 



CHAP. LI THE WORKING OF CITY GOVERNMENTS 


647 


make the fortunes of our principal cities the traffic of the lobbies. Munici¬ 
pal corruption, previously confined within territorial limits, thenceforth 
escaped all bounds and spread to every quarter of the State. Cities were 
compelled by legislation to buy lands for parks and places because the 
owners wished to sell them; compelled to grade, pave, and sewer streets 
without inhabitants, and for no other purpose than to award corrupt con¬ 
tracts for the work. Cities were compelled to purchase, at the public 
expense, and at extravagant prices, the property necessary for streets 
and avenues, useless for any other purpose than to make a market for the 
adjoining property thus improved. Laws were enacted abolishing one 
office and creating another with the same duties in order to transfer offi¬ 
cial emoluments from one man to another, and laws to change the func¬ 
tions of officers with a view only to a new distribution of patronage, and 
to lengthen the terms of offices for no other purpose than to retain in place 
officers who could not otherwise be elected or appointed.”. 

This last-mentioned cause of evil is no doubt a departure 
from the principle of local popular control and responsibility 
on which State governments and rural local governments have 
been based. It is a dereliction which has brought its punish¬ 
ment with it. But the resulting mischiefs have been immensely 
aggravated by the vices of the legislatures in a few of the States, 
such as New York and Pennsylvania. As regards the two former 
causes, they are largely due to what is called the Spoils system, 
whereby office becomes the reward of party service, and the whole 
machinery of party government made to serve, as its main 
object, the getting and keeping of places. Now the Spoils sys¬ 
tem, with the party machinery which it keeps oiled and greased 
and always working at high pressure, is far more potent and 
pernicious in great cities than in country districts. For in great 
cities we find an ignorant multitude, largely composed of recent 
immigrants, untrained in self-government; we find a great pro¬ 
portion of the voters paying no direct taxes, and therefore feeling 
no interest in moderate taxation and economical administration ; 
we find able citizens absorbed in their private businesses, culti¬ 
vated citizens unusually sensitive to the vulgarities of practical 
politics, and both sets therefore specially unwilling to sacrifice 
their time and tastes and comfort in the struggle with sordid 
wire-pullers and noisy demagogues. In great cities the forces 
that attack and pervert democratic government are exceptionally 
numerous, the defensive forces that protect it exceptionally 
ill-placed for resistance. Satan has turned his heaviest batteries 
on the weakest part of the ramparts. 

Besides these three causes on which the commissioners dwell, 



648 


THE STATE GOVERNMENTS 


PART II 


and the effects of which have been felt in the cities of other 
States as well as of New York, there are what may be called 
mechanical defects in the structure of municipal governments, 
whose nature may be gathered from the account given in last 
chapter. There is a want of methods for fixing public re 
sponsibility on the governing persons and bodies. When the 
mayor jobs his patronage he can indeed no longer, under the new 
charters, such as that of New York, throw part of the blame on 
the aldermen or other confirming council, alleging that he would 
have selected better men could he have hoped that the aldermen 
would approve his selection. But if he has failed to keep the 
departments up to their work, he may argue that the city legis¬ 
lature hampered him and would not pass the requisite ordinances. 
Each house of a two-chambered legislature can excuse itself by 
pointing to the action of the other, or of its own committees, 
and among the numerous members of the chambers — or even 
of one chamber if there be but one — responsibility is so divided 
as to cease to come forcibly home to any one. The various 
boards and officials have generally had little intercommunica¬ 
tion ; 1 and the fact that some were directly elected by the 
people made these feel themselves independent both of the 
mayor and the city legislature. The mere multiplication of 
elective posts distracts the attention of the people, and de¬ 
prives the voting at the polls of its efficiency as a means of 
reproof or commendation. 2 

To trace municipal misgovernment to its sources was com¬ 
paratively easy. To show how these sources might be dried 
up was more difficult, though as to some obvious remedies the 
reformers were agreed. What seemed all but impracticable 
was to induce the men who had produced these evils, who used 
them and profited by them, who were so accustomed to them 
that even the honester sort did not feel their turpitude, to 


1 In Philadelphia some one observed that there were four distinct and inde¬ 
pendent authorities with power to tear up the streets, and that there was no 
authority upon whom the duty was specifically laid to put them in repair again. 

2 Mr. Seth Low has well remarked in an address on municipal government: — 
“ Greatly to multiply important elective officers is not to increase popular con¬ 
trol, but to lessen it. The expression of the popular will at the ballot-box Is like 
a great blow struck by an engine of enormous force. It can deliver a blow com¬ 
petent to overthrow any officer, however powerful. But, as, in mechanics, great 
power has to be subsided in order to do fine work, so in giving expression to the 
popular will the necessity of choosing amid a multitude of unimportant officers 
involves inevitably a loss of power to the people.” 



CHAP. LI THE WORKING OF CITY GOVERNMENTS 


649 


consent^ to the measures needed for extinguishing their own 
abused power and illicit gains. It was from the gangs of city 
politicians and their allies in the State legislatures that reforms 
had to be sought, and the enactment of their own abolition 
obtained. In vain would the net be spread in the sight of such 
birds. 

The remedies proposed by the New York commission need not 
be enumerated, for the birds saw the net and refused to allow the 
amendments required to be submitted, so nothing was done at 
the time. Yet the reformers ultimately prevailed, for nearly 
all of their suggestions have by degrees been in substance adopted. 
The city was enlarged in 1902 by the inclusion of the great city of 
Brooklyn and the districts called Queen’s and the Bronx, and 
Staten Island, so Greater New York now consists of the five 
boroughs of Manhattan (the island on which New York City 
proper stands), Brooklyn, Queen’s, Richmond, and Bronx. 
Each of these boroughs has its own president and local adminis¬ 
trative authorities, all being under the general authority of 
the Mayor of the Greater City. Legislative power is divided 
between the aldermen and the Board of Estimate and Apportion¬ 
ment which consists of the mayor, the comptroller, the presi¬ 
dent of the board of aldermen, and the presidents of the five 
boroughs. It is the chief financial authority. The State Con¬ 
stitution has been so amended as to limit the legislature’s power 
of passing special acts relating to cities. State and city elec¬ 
tions have been separated. The city’s borrowing powers have 
been restricted and the functions of the mayor in appointing and 
removing officials extended. Thus though the new charter is far 
from perfect, it is admittedly much better than that of 1876. 1 

The most novel of the proposals made by the commissioners 
of 1876 and the one which excited most hostile criticism, that of 
creating a council elected by voters having a tax-paying (or 
rent-paying) qualification, has never been tried in any great city. 
It is deemed undemocratic; practical men say there is no use 
submitting it to a popular vote. 2 Nevertheless, there are still 

1 The Municipal Reform Movement continues active in certain directions. 
Important economics have been effected in New York, and an organization 
called the Bureau of Municipal Research, works energetically for reducing the 
cost and increasing the efficiency of city administration. 

See further as to New York municipal government the observations of Mr. 
Seth Low, ex-Mayor of Greater New York, in Chapter LII. 

* Though, as the commission pointed out (Report, p. 33), the principle that 




650 


THE STATE GOVERNMENTS 


PART II 


some who advocate it, appealing to the example of Australia, 
where it is said to have worked well. 

Among the other reforms in city government canvassed in 
America are the following : — 

(a) Civil service reform, i.e. the establishment of examina¬ 
tions as a test for admission to posts under the city, and the be¬ 
stowal of these posts for a fixed term of years, or generally during 
good behaviour, instead of leaving the civil servant at the mercy 
of a partisan chief, who may displace him to make room for a 
party adherent or personal friend. 

(b) The lengthening of the terms of service of the mayor and 

the heads of departments, so as to give them a more assured posi¬ 
tion and diminish the frequency of elections. — This has been 
largely done to some extent in recent charters. * 

(c) The vesting of almost autocratic executive power in the 
mayor and restriction of the city legislature to purely legisla¬ 
tive work and the voting of supplies. — This also now finds 
place in some charters, notably in the new one of New York, and 
has worked, on the whole, well. It is, of course, a remedy of the 
“cure or kill” order. If the people are thoroughly roused to 
choose an able and honest man, the more power he has the better ; 
it is safer in his hands than in those of city councils. If the voters 
are apathetic and let a bad man slip in, all may be lost till the 
next election. I do not say “all is lost,” for there have been 
remarkable instances of men who have been sobered and ele¬ 
vated by power and responsibility. The Greek proverb “office 
will show the man” was generally taken in an unfavourable 
sense. The proverb of the steadier-headed Germans, “Office 
gives understanding” (Amt gibt Verstand), represents a more 
hopeful view of human nature, and one not seldom justified in 
American experience. 

no one should vote upon any proposition to raise a tax or appropriate its pro¬ 
ceeds unless himself liable to be assessed for such tax, was one generally 
applied in the village charters of the State of New York, and even in the 
charters of some of the smaller cities. The report repels the charge that this 
proposal is inconsistent with the general recognition of the value of universal 
suffrage by saying: “No surer method could be devised to bring the principle 
of universal suffrage into discredit and prepare the way for its overthrow than 
to pervert it to a use for which it was never intended, and subject it to a service 
which it is incapable of performing. ... To expect frugality and economy 
in financial Concerns from its operation in great cities, where perhaps half of 
the inhabitants feel no interest in these objects, is to subject the principle to a 
strain which it cannot bear. All the friends of the system should unite in rescu¬ 
ing it from such perils.” — Page 40. 



CHAP. LI THE WORKING OF CITY GOVERNMENTS 


651. 


(d) The election of a city legislature, or one branch of it, or 
of a school committee, on a general ticket instead of by wards. 
— When aldermen or councilmen are chosen by the voters of a 
small local area, it is assumed, in the United States, that they 
must be residents within it; thus the field of choice among good 
citizens generally is limited. It follows also that their first duty 
is deemed to be to get the most they can for their own ward; 
they care little for the general interests of the city, and carry 
on a game of barter in contracts and public improvements with 
the representatives of other wards. Hence the general ticket 
system is preferable. 

(e) The limitation of taxing powers and borrowing powers 
by reference to the assessed value of the taxable property within 
the city. — Restrictions of this nature have been largely applied 
to cities as well as to counties and other local authorities. The 
results have been usually good, yet not uniformly so, for evasions 
may be practised. The New York commission say: “The 
apparent prohibition, both as to taxation and the percentage of 
debt, could be readily evaded by raising the assessment. Such 
restrictions do not attempt to prevent the wastefulness or em¬ 
bezzlement of the public funds otherwise than by limiting the 
amount of the funds subject to depredation. The effect of such 
measures would simply be to leave the public necessities without 
adequate provision.” 1 And Messrs. Allinson and Penrose ob¬ 
serve — 

“ By the Constitution of 1874 it is provided that the debt of a county, 
city, borough, township, or school district shall never exceed 7 per cent 
on the assessed value of the taxable property therein. This provision was 
intended to prevent the encumbering of the property of any citizen for 
public purposes to a greater extent than 7 per cent. In its workings it 
has been an absolute failure. In every city of the State, except Philadel¬ 
phia, the city is part of the county government. The county has power 
to borrow to the extent of 7 per cent: so has the city : so has the general 
school district: so has the ward school district — making 28 per cent in 
all, which can be lawfully imposed, and has been authorized by the Act 
of 1874. But there is still another cause of failure to which Philadelphia 
is more peculiarly liable. In order to evade the provision of the Consti¬ 
tution limiting the power to contract debts to 7 per cent, the assessed 
value of property in nearly every city of the State was largely increased - 
in some instances, incredible as it may seem, to the extent of 1000 per cent. 

1 Another disadvantage is that such restriction may sometimes compel a 
public improvement to be executed piecemeal which could be executed more 
cheaply if done all at once. See Chapter XLIII. 




652 


THE STATE GOVERNMENTS 


PART It 


It is therefore clear that no sufficient protection against an undue increase 
of municipal debt can be found in constitutional and legislative provisions 
of this kind.” — Philadelphia, a History of Municipal Development (1887), 
p. 276. 

Nevertheless, such restrictions are now often found embodied 
in State constitutions, and have, usually, diminished the evil 
they are aimed at. 

(/) The introduction of methods for referring questions to 
the direct vote of the citizens in the three forms of Initiative, 
where a prescribed percentage of the voters submit an ordinance 
for enactment by the citizens, Referendum, where the City 
Council is required, on the petition of a prescribed percentage 
of voters, to refer to the citizens at the polls an ordinance it has 
passed, and Recall, whereby a prescribed percentage can de¬ 
mand the election of a successor to the holder of any elective 
office whom they seek to remove.—The holder is permitted to 
be a candidate at such election, and if he obtains the largest 
number of votes is therewith re-elected. By these methods it 
is hoped to prevent the jobbing of contracts by city legisla¬ 
tures and to secure the good conduct of officials. They are 
drastic remedies, and their working is being watched with 
lively interest . 1 

1 For a good example of these provisions see the Charter of the city of Los 
Angeles, as revised and amended up to 1909. 

In 1909 a demand for a Recall vote for the office of Mayor was submitted in 
Los Angeles, whereupon the existing incumbent of that office disappeared and a 
successor was elected. 

A warm advocate of the Recall, who has had wide experience of municipal 
misrule, has stated the case for that remedy as follows : — 

“ From twenty-five to forty per cent of the income of most of our large cities 
is dissipated by extravagance, mismanagement and corruption, and (what is 
worse) the moral tone of the citizenship lowered thereby. 

“ This condition results from the rule of political machines. 

“ These machines are created and maintained by public utility corporations, 
liquor interests, gamblers and other disreputable elements of society aided by 
some eminently respectable business men who receive special privileges through 
reason of the existence of corrupt government, and by a large number of honest 
voters who, unfortunately, are narrow partisans always voting the straight ticket. 
All these, however, constitute a minority of the entire electorate, but owing to 
a complicated system of nominations, perfect organization, and enormous cor¬ 
ruption funds supplied principally by public utility corporations, the machine is 
kept in power despite the fact that the majority of the electorate is honest and 
desires good government. 

“ Various panacese — increased power of mayors, civil service reform, election 
of councilmen at large, etc. — are of little avail, for with the Machine in 
full control these measures give it increased power. Even the election of good 
men to office (when through herculean efforts this is spasmodically achieved) 




CHAP. LI THE WORKING OF CITY GOVERNMENTS 653 


(: g ) The supersession of the usual frame of government by a 
Mayor and Council by the creation of a small Board of Commission¬ 
ers elected by ‘ a general ticket * vote over the whole city. —This 
so-called Galveston or Des Moines Plan has been already men¬ 
tioned {supra, page 634). It is now (1910) spreading fast over 
the Union in various forms. It is expected, in its most advanced 
form, to reduce the power of the Machine by nominations through 
open primaries (see note to Chapter LX, post) and by making the 
election on ‘ general ticket ’ instead of by wards, to secure due re¬ 
sponsibility by concentrating power in very few hands, to keep 
officials up to the mark by the threat of a Recall Vote, to prevent 
jobs and corruption by letting the people as a whole vote upon 
the grant of franchises and to secure effective popular control 
by a Referendum on city ordinances. It is the most sweeping 
of all the schemes of reform hitherto propounded or applied, 
but has not been long enough in operation for its possible defects 
to have yet fully revealed themselves. 

I must not attempt to discuss the interesting question of the 
results of entrusting to city governments the supply of water, 
gas, and electricity, perhaps also street railways, because Amer¬ 
ican cities are accumulating such a mass of experience on the 
subject that it could not be dealt with save at considerable 
length, while the wise still differ as to the general conclusions 
to be formed. 1 The objections to placing this function in the 
hands of such men as rule most municipalities are obvious. 
One group of these objections will be found illustrated in a 
later chapter, describing the Gas Ring in Philadelphia. There 
are, however, some reformers sanguine enough to believe that 
when city councils obtain functions whose exercise has a strong 
and obvious interest for the citizens, the latter are roused to a 

frequently fails to produce any marked effect, because these men often cease to 
be good. 

“ This condition then confronts us : a minority controlling corruptly, while a 
majority of the electorate is honest. The remedy is plain and very simple. If 
it is desired to have a true representative and an efficient and honest government, 
give to the honest majority of the electorate the power to initiate legislation 
which their legislative bodies may refuse : this is the Initiative. Give to the 
honest majority the power to veto the undesired acts of their legislators : this is 
the Referendum, and give to the same honest majority the power to discharge 
from office at any time any inefficient or incompetent officer: this is the Recall.” 

1 Of about 160 cities with a population exceeding 20,000, water supply is in 
69 left to private corporations, and in 101 belongs to the municipality. 

See upon this subject the Report (1907) of the Civic Federation Committee 
on municipal ownership. 



654 


THE STATE GOVERNMENTS 


PART II 


more active and watchful control, and may be counted on to 
eject corrupt politicians from power. Nor must we forget 
that the plan of leaving the function to private corporate com¬ 
panies is open to evils scarcely less patent than those which flow 
from dishonest public management, because these companies 
when they prosper and grow large bring their wealth to bear 
upon the municipal authorities, and have even been known 
to scatter bribes widely among the voters for the sake of 
retaining or extending their monopoly. Each plan has its 
dangers. It is not the least among the many mischiefs 
entailed by the pollution of city governments that citizens 
who resent the high prices charged and poor supply given by 
private companies often prefer to bear these hardships and to 
wink at the impure methods which some companies employ rather 
than face the risk of throwing to the Rings that control the 
larger municipalities the additional mass of patronage and 
additional material for jobbery which the business of water 
and gas supply carries with it. 

The question of city government is that which chiefly occu¬ 
pies practical publicists in America, because they have long 
deemed it the weakest point of the country. That adaptability 
of the institutions to the people and their conditions, which 
judicious strangers have been wont to admire in the United 
States, and that consequent satisfaction of the people with 
their institutions, which contrasts so agreeably with the dis¬ 
content of European nations, is wholly absent as regards mu¬ 
nicipal administration. Wherever there is a large city there are 
loud complaints, and Americans who deem themselves in other 
respects a model for the Old World are in this respect anxious to 
study Old World models, those particularly which the cities of 
Great Britain present. The best proof of dissatisfaction is to 
be found in the frequent changes of system and method. What 
Dante s^id of his own city may be said of the cities of America : 
they are like the sick man who finds no rest upon his bed, but 
seeks to ease his pain by turning from side to side. Every now 
and then the patient finds some relief in a drastic remedy, such 
as the enactment of a new charter and the expulsion at an elec¬ 
tion of a gang of knaves. Presently, however, the weak points of 
the charter are discovered, the State legislature again begins to 
interfere by special acts, or a “ public service corporation ” be¬ 
gins to seduce the virtue of officials; civic zeal grows cold and 



CHAP. LI THE WORKING OF CITY GOVERNMENTS 


655 


allows bad men to creep back into the chief posts ; Federal issues 
are allowed to supersede at municipal elections that which ought 
to be always deemed the real issue, the character and capacity 
of the candidates for office. All this is discouraging. Yet no 
one who studies the municipal history of the last decades wil T 
doubt that things are better than they were twenty-five yean 
ago. The newer frames of government are an improvement 
upon the older. Rogues are less audacious. Good citizens are 
more active. Party spirit is still permitted to dominate and 
pervert municipal politics, yet the mischief it does is more 
clearly discerned and the number of those who resist it daily 
increases. In the increase of that number and the growth of 
a stronger sense of civic duty rather than in any changes of 
mechanism, lies the ultimate hope for the reform of city govern* 
ments. 




CHAPTER LII 


AN AMERICAN VIEW OF MUNICIPAL GOVERNMENT IN THE 
UNITED STATES 

By the Hon. Seth Low, formerly Mayor of New York City 

In England there are said to be three kinds of cities: cities 
by prescription, like London and Exeter, which have been cities 
from time immemorial; cities that are such because they have 
been the seat of a bishop; and cities organized under the 
modern Municipal Corporations Act. In the United States, 
twenty municipal corporations received charters as cities during 
the Colonial period. These charters, in order to be valid, had 
to be confirmed after the Revolution by the legislature of the 
State in which the city was located. In other words, a city 
in the United States is the creature of the legislature of the 
State in which it is. The legislature’s power over the city’s 
form of government is substantially absolute, except as the 
legislative power may be limited by the State Constitution. 
As there are forty-eight States in the Union, and as there were, 
according to the census of 1910, seven hundred and seventy-four 
cities in the United States with a population of eight thousand 
or more, it will be readily understood why there is no uniform 
type of city charter even for the more modern cities. The 
city of Washington, in the District of Columbia, which be¬ 
longs to the Nation, is subject to the direct legislation of Con¬ 
gress. In this respect it is unique. Its inhabitants enjoy no 
vote even as to local affairs. It is administered by a Com¬ 
mission of Three, appointed by the President of the United 
States, subject to confirmation by the Senate, and is probably 
the only city in the United States without a mayor. 

Any European student of politics who wishes to understand 
the problem of government in the United States, whether of 
city government or any other form of it, must first of all trans¬ 
fer himself, if he can, to a point of view precisely the opposite 

656 


CHAP. LII 


MUNICIPAL GOVERNMENT 


657 


of that which is natural to him. This is scarcely, if at all, 
less true of the English than of the continental student. In 
England, as upon the Continent, from time immemorial, govern¬ 
ment has descended from the top down. Until recently, society 
in Europe has accepted the idea, almost without protest, that 
there must be governing classes, and that the great majority of 
men must be governed. The French Revolution doubtless 
modified this idea everywhere, and especially in France, but 
even in France public sentiment on this point is a resultant of 
a conflict of views. In the United States, however, that idea 
does not obtain at all, and, what is of no less importance, it 
never has obtained. No distinction is recognized of govern¬ 
ing and governed classes, and the problem of government is, in 
effect, an effort on the part of society as a whole to learn and to 
apply to itself the art of government. Bearing this in mind, 
it becomes apparent that the immense tide of immigration into 
the United States is a continually disturbing factor. The 
immigrants come from many countries, a very large proportion 
of them being of the classes which, in their old homes, from 
time out of mind have been governed. Arriving in America, 
they shortly become citizens in a society which undertakes to 
govern itself. However well disposed the immigrants may be 
as a rule, they have not had experience in self-government, nor 
do they always share the ideas which have expressed them¬ 
selves in the Constitution of the United States. This foreign 
element settles largely in the cities of the country. It is esti¬ 
mated that the population of New York City contains approxi¬ 
mately eighty per cent of people who either are foreign born, or 
are the children of foreign-born parents. Consequently, in a 
city like New York, the problem of learning and applying the 
art of government is handed over to a population that begins, 
in point of experience, very low down. In many of the cities of 
the United States, indeed, in almost all of them, the population not 
only is thus largely untrained in the art of self-government, but it 
is not even homogeneous. So that an American city is con¬ 
fronted not only with the necessity of instructing large and rapidly 
growing bodies of people in the art of government, but it is 
compelled at the same time to assimilate strangely different 
component parts into an American community. It will be 
apparent to the student that either one of these functions by 
itself would be difficult enough. When both are found side by 
2u 




658 


THE STATE GOVERNMENTS 


PART I! 


side, the problem is increasingly difficult as to each. Together 
they represent a problem such as confronts no city in the United 
Kingdom or in Europe. 

The American city has had problems to deal with, also, of a 
material character, quite different from those which have con¬ 
fronted the cities of the Old World. With the exception of 
Boston, Philadelphia, Baltimore, New Orleans, and New York, 
there is no American city of great consequence whose roots 
go down into the distant past even of America. American 
cities as a rule have grown with a rapidity to which the Old 
World presents few parallels. London, in the extent of its 
growth, but not in the proportions of it; Berlin since 1870, 
and Rome in the last few years, are perhaps the only places in 
Europe which have been compelled to deal with this element 
of rapid growth in anything like a corresponding degree. All 
of these cities, London, Berlin, and Rome, are the seats of the 
national government, and receive from that source more or 
less help and guidance in their development. In all of them 
an immense nucleus of wealth existed before this great and 
rapid growth began. The problem in America has been to 
make a great city in a few years out of nothing. There has 
been no nucleus of wealth upon which to found the structure 
which every succeeding year has enlarged. Recourse has been 
had of necessity, under these conditions, to the freest use of 
the public credit. 

The city of Chicago, for example, with its population of 
two millions of people, was a small frontier trading post eighty 
years ago. Within that period everything has been created 
out of the fields. The houses in which the people live, the 
waterworks, the paved streets, the sewers, everything which 
makes up the permanent plant of a city, all have been pro¬ 
duced while the city has been growing from year to year at a 
fabulous rate. Besides these things are to be reckoned the 
public schools, the public parks, and many municipal monu¬ 
ments of every kind. American cities as a rule have a more 
abundant supply of water than European cities, and they are 
usually more enterprising in furnishing themselves with things 
which in Europe may be called the luxuries of city life, but 
which, in America, are so common as to be regarded as neces¬ 
sities. Especially is this true of every convenience involving 
the use of electricity. There are more than half as many tele- 



CHAP. LII 


MUNICIPAL GOVERNMENT 


65S 


phones, for example, in the city of New York alone, as 
there are in the whole of the United Kingdom. 

The necessity of doing so much so quickly has worked to the 
disadvantage of the American city in two ways. First, it has 
compelled very lavish expenditure under great pressure for’ 
quick results. This is precisely the condition under which 
the best-trained business men make their greatest mistakes, 
and are in danger of running into extravagance and wasteful¬ 
ness. Few candid Americans will deny that American cities 
have suffered much, not alone from extravagance and wasteful¬ 
ness, but also from dishonesty; but in estimating the extent 
of the reproach, it is proper to take into consideration these 
general conditions under which the cities have been compelled 
to work. The second disadvantage under which American 
cities have laboured arising from this state of things has been 
a very general inability to provide adequately for current 
needs, while discounting the future so freely in order to secure 
their permanent plant. When the great American cities have 
paid for the permanent plant which they have been accumulat¬ 
ing during the last half century, so that the duty which lies be¬ 
fore them is chiefly that of caring adequately for the current 
life of their population, a vast improvement in all these par¬ 
ticulars may reasonably be expected. The standard of city 
paving and of street cleaning in American cities, as a whole, is 
much higher now than it was when the first edition of this book 
appeared in 1888. In other words, time is a necessary element 
in making a great city, as it is in every other great and en¬ 
during work. American cities are judged by their size, rather 
than by the time which has entered into their growth. It 
cannot be denied that larger results could have been produced 
with the money expended, if it had always been used with 
complete honesty and good judgment. But to make an intel¬ 
ligent criticism upon the American city, in its failures upon 
the material side, these elements of especial difficulty must 
in fairness be taken into consideration. 

Looked at in this light, the marvel would seem to be, not so 
much that the American cities are justly criticisable for many 
defects, but rather that results so great have been achieved in so 
short a time. New York City, for example, is just finishing the 
last of three suspension bridges, every one of which, in size and 
capacity, exceeds all other suspension bridges in the world. 



660 


THE STATE GOVERNMENTS 


PART J\ 


The city has also built a fourth bridge of the cantilever type, 
which, in capacity, much exceeds the great Forth Bridge, though 
the span is less long. New York has also developed in its 
corporate capacity, in co-operation with and under the direction 
of organizations of private citizens, a natural history museum 
that is second to no other, an art museum that is fairly counted 
among the greatest of art museums, a botanical garden that is 
rapidly forging towards the first rank, a zoological garden that 
in size and equipment excels any other, and an aquarium that is 
also worthy of leading rank. Each of these institutions is 
free. They are visited annually by millions of people; are all 
related to the public school system of the city, and stand as 
high for scientific usefulness as for public service. The city 
of Boston is steadily carrying towards completion one of the 
most remarkable systems of municipal parks and boulevards to 
be found in any country; and that is a poor American city, in¬ 
deed, that does not tax itself freely to provide pleasure grounds 
for its people. Probably Berlin alone, among the great cities 
of Europe, is as well lighted as New York; and some of the 
cities of the Middle and Far West are proportionately better 
lighted than New York. The city of St. Louis, a city of 687,000 
people, conducted successfully, a few years ago, a World’s Fair 
on a scale as great as has ever been attempted. These are but 
illustrations of what American cities have accomplished in 
many important fields. 

One particular in which the American city may be thought 
to have come short of what might have been expected, may 
be described in general terms as a lack of foresight. It would 
have been comparatively easy to have preserved in all of them 
small open parks, and generally to have made them more 
beautiful, if there had been a greater appreciation of the need 
for these things and of their future growth. The western cities 
probably have erred in this regard less than those upon the 
Atlantic coast. But while it is greatly to be regretted that this 
large foresight has not been displayed, it is, after all, only re¬ 
peating in America what has taken place in Europe. The 
improvement of cities seems everywhere to have been made by 
tearing down and replacing at great cost, rather than by a far¬ 
sighted provision for the demands and opportunities of the future. 
This unfortunate result in America has flowed, in part, from the 
frequent tendency of population to grow in precisely the direc- 




CHAP. LI I 


MUNICIPAL GOVERNMENT 


661 


tion which was not anticipated. An interesting illustration 
of this last factor is to be found in the city of Washington. 
The Capitol was built to face towards the east, under the im¬ 
pression that population would settle in that direction. As 
matter of fact, the city has grown towards the west, so that the 
Capitol stands with its back to the city and faces a district that 
is scarcely built upon at all. 

All the troubles which have marked the development of cities 
in the United States, however, are not due to these causes. 
Cities in the United States, as forms of government, are of 
comparatively recent origin. The city of Boston, for example, 
in the State of Massachusetts, although the settlement was 
founded more than two hundred and fifty years ago, received 
its charter as a city so recently as 1822. The city of Brooklyn, 
now a borough of the city of New York, received its charter 
from the State of New York in 1835. In other words, the 
transition from village and town government into government 
by cities, has simply followed the transition of small places 
into large communities. This suggests another distinction be¬ 
tween the large cities of the United States and those of Great 
Britain. The great cities of England and of Europe, with few 
exceptions, have their roots in the distant past. Many of their 
privileges and chartered rights were wrested from the Crown in 
feudal times. Some of these privileges have been retained, and 
contribute still to the income, the just pride, and the influence of 
the municipality. The charter of an American city represents 
no such element of prestige or inspiration. It is only the legal 
instrument which gives the community authority to act as a 
corporation, and which defines the duties of its officers. The 
motive for passing from town government to city government, 
in general has been the same everywhere — to acquire a certain 
readiness of action, and to make more available the credit of 
the community in order to provide adequately for its own 
growth. The town meeting, in which every citizen takes part, 
serves its purpose admirably in communities up to a certain 
size, and for the conducting of public work on not too large a 
scale. But the necessity for the easy use of the public credit in 
providing for the needs of growth has compelled rapidly growing 
communities, in all the States, to seek the powers of a corpora¬ 
tion as administered through a city government. 

It will be perceived that the great growth of cities in the 



662 


THE STATE GOVERNMENTS 


PART I! 


United States has thus resulted in the rapid transformation of 
a rural population into a population largely dwelling in cities ; 
and this rapidly transformed urban population has been called 
upon, without any qualifying experience, to solve the difficult 
problem of city government. For many years, Americans 
applied to cities the theories which they had successfully em¬ 
bodied in the government of their States. It is only as some of 
these theories have broken down, when applied to cities, that 
Americans have begun to realize that they have on their hands 
a problem, new for them, which must be solved, so to speak, by 
rules of its own. Superficial observers may think that they 
have said all that needs to be said, when they have asked, “How 
can any one expect to get good city government with manhood 
suffrage?” Manhood suffrage is an element in the problem, 
certainly; and the problem must be solved with manhood 
suffrage as a factor. But manhood suffrage, even in cities, is 
by no means a source of difficulty only. Every European city, 
comparable in size to any one of a half dozen American cities, 
swarms with soldiers. Outside of London this is less true of Eng¬ 
land than of the Continent. The population of American cities 
is much more heterogeneous than the population of these Euro¬ 
pean cities; yet the American cities are free from soldiers, and 
although they have a smaller police force than corresponding 
European cities, public order is just as well preserved. The 
fact is that in American cities the people keep themselves in 
order, because they feel that the city is theirs. Manhood 
suffrage in American cities, as everywhere else in the United 
States, wakes the people up and develops a population of great 
average capacity. 

Why is it, then, that Americans are less proud of their institu¬ 
tions, as illustrated in city government, than anywhere else? 

In other words, why is it that American cities, despite their 
good points, have so much difficulty in securing a city govern¬ 
ment that needs no apology ? Some of the reasons, at least, 
may be indicated. Growing, as they have done, out of villages 
and towns, and compelled to go to the legislature of the State 
for their charters, American cities have seldom received in the 
first instance such adequate grants of power over their local 
affairs as to enable them to grow without constant resort to the 
legislature for additional powers. The States, also, have used 
the city for many purposes as the agent of the State. Out of 



CHAP. LII 


MUNICIPAL GOVERNMENT 


663 


these two circumstances has grown the habit, in almost every 
State, of interfering through the legislature with the details of 
city expenditure and city administration. The story of muni¬ 
cipal reform in the United States is everywhere a story of the 
effort, by constitutional amendment, to limit the power of the 
State legislature to interfere with the details of city government. 

The Constitution of the United States gives to the Presi¬ 
dent great administrative power, including great power of ap¬ 
pointment. The constitutions of the States, on the other hand, 
— certainly of all the original States, — looked to division of 
power as a source of safety; so that, instead of electing a Gov¬ 
ernor with power to appoint the administrative officers of the 
State, as the President does for the United States, the principal 
administrative officers of the State, as well as the Governor, 
are all elected by the people. Unhappily, this latter policy was 
almost uniformly followed in the organization of cities. Elec¬ 
tive officers were made numerous, and the terms of office short. 
As a result, efficiency was impossible, and anything like effec¬ 
tive responsibility to the voters could not be secured. It has 
taken, and will still take, a long time for Americans to realize 
that responsibility to the people is best maintained when elec¬ 
tive officers are few in number, but have ample authority; and 
that efficiency is greatest when elected officials have adequate 
power to do right, even if they sometimes do wrong. The progress 
making in the direction of reducing the number of elected city 
officials is well illustrated by Boston’s new charter, granted in 
1909. This charter reduces the number of elected officials, in 
Boston, from 97 to 10. 

City inefficiency was greatly increased, also, by the demoral¬ 
izing maxim, which came into the political life of the country 
in 1834, “To the Victors belong the Spoils.” Under the in¬ 
fluence of that battle-cry, which was adopted by all political 
parties, even the subordinate civil service of the cities became 
as unstable as the sea. 

In the matter of preventing interference by the State in the 
local affairs of the city, one State after another has passed con¬ 
stitutional amendments aimed at that evil. In the State of New 
York, no law affecting a city can be passed until it has first been 
submitted to the local authorities: in the larger cities to the 
mayor, and in the smaller cities to the mayor and Common 
Council. Public hearings are given in every city before action 




664 


THE STATE GOVERNMENTS 


PART n 


can be taken by the local authorities, and the Bill is then returned, 
with or without the approval of the city, to the branch of the 
legislature in which the Bill originated. The legislature has 
the authority to re-pass the Bill, notwithstanding the protest of 
the city. The Bill, if accepted by the city, or if passed by the 
legislature a second time, then goes to the Governor for ap¬ 
proval or disapproval, as in the case of any other State law. If a 
Bill is passed for the first time by the legislature, so near the end 
of its session that the time given to the city for its consideration 
does not admit of its re-passage by the legislature in the event 
of its non-acceptance by the city, then the non-acceptance by 
the city is fatal to the Bill. In other words, by reason of this 
amendment to the Constitution of the State of New York, 
adopted in 1894, no action can be taken by the legislature of the 
State without notice to the city. In almost every case the 
attitude of the city is final. It is only in matters of the first 
consequence that the judgment of the city is ever overruled by 
the legislature. 

When this chapter was revised in 1906, the States of Mis¬ 
souri, California, Washington, Minnesota, and Colorado had 
adopted constitutions granting to the cities of those States, 
with various restrictions, the authority to make their own char¬ 
ters, which, when made, are not easily amendable by the legis¬ 
lature. City-made charters in California must be confirmed by 
the legislature; but the legislature, thus far, has always con¬ 
firmed the city’s action. Since 1906, the States of Oregon, Okla¬ 
homa, and Michigan have followed in the same path. In other 
words, the movement to prevent the interference by legislatures 
in the local affairs of cities throughout the States of the Union 
has already acquired great momentum, and it is not likely to be 
many years before this obstacle to good city administration has 
been overcome throughout the Union. 

In the matter of securing more efficient administration of cities, 
it is evident that permanency of tenure of the subordinate admin¬ 
istrative officials is a great factor in the situation. The definite 
adoption of the policy of Civil Service Reform by the United 
States, in 1883, has been followed very generally by the States 
of the Union in relation to the Civil Service not only of the States, 
but also of the cities of the States. In the State of New York 
this policy has been embodied in the Constitution of the State, 
and applies not only to the State administration, but to the 



CHAP. LII 


MUNICIPAL GOVERNMENT 


665 


administration of all the cities and local sub-divisions of the 
State. Much remains to be done to bring about an ideal condi¬ 
tion throughout the Union, but the right path has been entered 
upon, and it is likely to be followed to the end. 

Responsibility to the people for administration in cities has 
been sought by two main methods. In the cities of New York 
and Philadelphia, and now in Boston, by its new charter, the 
mayor of the city is given the absolute power of appointment 
and removal of the heads of the administrative departments. 
The recent charter of the city of Boston provides a new limita¬ 
tion upon the power of appointment, from which, theoretically, 
much is to be hoped. It will be interesting to observe how it 
works in practice. The Charter requires that the mayor, in 
filling responsible offices, shall appoint “ recognized experts in 
such work as may devolve upon the incumbents of said offices, 
or persons specially fitted by education, training, and experience 
to perform the same.” These officers are to be “appointed 
without regard to party affiliation or residence at the time of 
appointment” ; and the mayor’s appointment does not become 
operative, unless at least a majority of the State Civil Service 
Commission certify, within thirty days, that a careful inquiry 
into the qualifications of the appointee satisfies them that the 
appointee “is qualified by education, training, and experience” 
for the office to which he has been appointed. It will be observed 
that this provision gives to the State a certain administrative 
control over the appointments of the mayor of Boston; but 
administrative control by the State is far less objectionable 
than legislative control; for administrative control by the State 
is likely to be used, as it is in England, to help and not to em¬ 
barrass the city. It is, evidently, clearly within the right of 
the State to insist, as a matter of uniform policy, that all ap¬ 
pointments to office, within the State, shall involve the element 
of fitness as determined by a standard fixed by the State itself. 
It is a commentary on city administration, as it has been illus¬ 
trated in Boston, that the State of Massachusetts should find 
it necessary to pass upon the special fitness for the work to be 
done, of an appointed city official. But no one familiar with the 
government of large cities throughout the United States imagines 
for a moment that Boston has been a sinner in this particular 
above all other cities. The special importance of this charter 
provision lies, on the contrary, in the fact that it is an intelli- 



666 


THE STATE GOVERNMENTS 


PART If 


gent effort to find a remedy for a widespread evil. The working 
of this clause, therefore, will be of immense interest, not only to 
the city of Boston but to all the cities of the Union. 

The conclusions of the Boston Finance Commission, which 
was appointed originally by the mayor, and subsequently given 
special authority by the State of Massachusetts, and which pro¬ 
posed the new charter, are of interest as indicating the trend 
of modern American opinion. The Commission says: 

“The legislative measures which the commission regards as 
essential to enable the people of Boston to redeem their govern¬ 
ment may be summarized as follows : 

“1. A simplified ballot, with as few names thereon as possible. 

“2. The abolition of party nominations. 

“3. A city council consisting of a single small body elected 
at large. 

“4. The concentration of executive power and responsibility 
in the mayor. 

“5. The administration of the departments by trained ex¬ 
perts, or persons with special qualifications for the office. 

“6. Full publicity secured through a permanent finance com¬ 
mission.” 

The permanent Finance Commission referred to is a body 
of five, to be appointed by the Governor of the State, with power 
“to investigate, publish, and advise.” This, also, is a new 
departure in American practice, and one that is likely to be 
widely followed, if it works well. 

The other direction in which greater efficiency in city admin¬ 
istration has been sought, is that which is known as the “Com¬ 
mission” or “Galveston” plan. In 1900 the city of Galveston, 
in Texas, was visited by a great tidal wave. The damage done 
to the city was so great as almost to threaten it with oblitera¬ 
tion. In the presence of this emergency, the people of Galveston 
besought the legislature to amend the city charter, so as to give 
the city power to deal with the situation. The governing body 
of the city was reduced to a Board of five members, presided 
over by an official known as Mayor-President. This Board has 
full legislative and administrative power for the city. It 
creates the city departments to be administered, and, by a 
majority vote, divides the administration of the departments 
among the members of the Board, including the mayor. The 
mayor, in general, has no greater authority than any of his 



CHAP. LII 


MUNICIPAL GOVERNMENT 


667 


associates, although he is, in a sense, the general manager. 
The men first chosen in Galveston to administer this new system 
were thoroughly competent and upright men. They not only 
redeemed Galveston from its disaster, but set the city upon a 
plane which it had never reached before. The result has been 
that this system of city government has been widely adopted 
not only in Texas, but in other States of the Union. Massa¬ 
chusetts and Idaho, by special charter, have granted this form 
of government to certain of their cities, and the States of 
Iowa, Kansas, North Dakota, South Dakota, and Mississippi 
have passed laws enabling their cities, if they choose, to have 
charters embodying the general features of this plan. In cities 
of a moderate size the plan has worked sufficiently well, where 
it has been tried, to encourage its adoption by a continually 
increasing number of cities. The Report of the Secretary of 
the National Municipal League, made at the annual meeting 
of the League in 1909, calls attention to the fact that, within 
the previous two years, 138 cities in the Union have been 
seriously considering the question of charter making and charter 
revision. This statement shows how keenly alive the people of 
the United States are to the importance of having for cities 
charters which give promise of efficiency. But the fact is note¬ 
worthy that the largest cities have chosen to seek administra¬ 
tive responsibility by centring the power to appoint and remove 
administrative officials in the hands of the mayor, while it is 
only the cities of moderate size, say, of 100,000 or fewer, inhab¬ 
itants, that have chosen the Galveston type. Galveston itself 
has about 37,000 inhabitants. The power of political machinery 
increases with the size of the population. The largest cities 
have chosen to concentrate power in the hands of the mayor, 
because, in such cities, the leader of the dominant political party, 
usually called a “boss,” becomes so strong as often to dominate 
even the mayor of the city, who may belong to his party. The 
“boss,” as such, exerts power without responsibility; and the 
only way to dislodge him from control of the city, through the 
machinery of an election, is to give to the mayor, by law, 
the power which the “boss” exercises without legal authority, so 
that by dislodging a mayor who is subservient to a “boss,” 
the people can take the city government, on its administrative 
side, out of the hands of the “boss.” This system was first 
tried in the city of Brooklyn, N.Y., which was then an indepen- 




668 


THE STATE GOVERNMENTS 


PART II 


dent city, in 1882. Brooklyn is now a borough of the city of 
New York, and the Brooklyn system, in this respect, has been 
accepted by the larger city. It has been substantially adopted 
by Philadelphia; and, again, by the city of Boston, in the 
newest charter granted to any of the large cities of the country. 

This discussion raises the question, how it is, that, in the 
United States, any one not legally related to the government of 
a city can acquire such power as is exercised in all the large 
American cities by the so-called “boss” of the dominant party. 
The answer to this question is partly historical and partly phil¬ 
osophical. It is historical in the sense that the American people 
are strong partisans, and vote with their party, ordinarily, on 
local issues, no less than on national issues. In the State of 
New York, as early as 1815, when the local officials, including the 
mayor of New York, were appointed by a State Board of Ap¬ 
pointment, so important a man as DeWitt Clinton, a man who 
had been Senator of the United States, and who, later, as Gov¬ 
ernor of the State of New York, constructed the Erie Canal, was 
removed from the office of mayor of New York by a State Board 
of Appointment that differed from him on national politics, 
in execution of a party programme. This illustrates the preg¬ 
nant fact that, even at that early day, when neither manhood 
suffrage nor immigration entered into the problem at all, the 
habit existed, in New York State at any rate, on the part of those 
controlling the national parties, of using the cities as pawns in 
the game of national politics. It is important to notice that this 
habit was not created by the extension of the suffrage, nor by 
the growth of immigration. On the contrary, the curious 
and interesting fact is that the habit has survived the extension 
of the suffrage. The same attitude of mind on the part of the 
national political parties towards the cities continues largely 
unchecked to the present day. It is the strong partisanship of 
the American people which has made this possible; and it is 
only within the last thirty years, since the consciousness of the 
city problem, as a problem by itself, has been pressed home on 
the American mind and conscience, that any pause has been 
given to this sort of thing. Now, the demand for home rule 
by the cities is so intelligent and so insistent that the political 
parties find it good judgment, very often, to recognize this senti¬ 
ment. The habit persists, nevertheless, with the great majority 
of Americans, of voting with their national party, even in local 



CHAP. LII 


MUNICIPAL GOVERNMENT 


669 


elections. This is the historical condition which creates the 
“boss.” 

The philosophical explanation of the “boss” is to be found 
in the fact, that, where the voting population is large, it requires 
efficient organization to get out the vote. In the city of New 
York, for example, more than 600,000 people voted in the elec¬ 
tion of 1909. Simply to send one letter to all of the voters would 
cost more than $12,000. To acquaint the voters with the issues 
of the campaign, to interest them to go to the polls, and to see 
that their vote is cast, involves organization of a high order, 
and this is costly; and, in order to be efficient, the organization 
must also be manned by men thoroughly competent. This 
means that the organization needed for the service of a party not 
infrequently becomes so strong as to dominate the party; so 
that the organization, instead of being the servant of the party, 
becomes its master. The organization itself, to be most effi¬ 
cient, must be under permanent and capable control. The 
result is, first, the development of the professional politician 
who lives by politics; and, second, in cities, the leadership of 
this band by some one man who often becomes in the end its 
autocratic ruler. 

This tendency is felt everywhere throughout the United 
States, and for the same reasons. It is probably true, that, 
in every State organization, the political machinery is subject 
to the same tendencies as have revealed themselves in cities. 
But the political “boss” of the city is more frequently an 
arbitrary potentate than the political “boss” of a State; be¬ 
cause, in a State, the population is not so much concentrated, 
and there is a wider range of interests to be considered. Pro¬ 
portionately, moreover, the City Budget is much greater than 
the State Budget. The Budget of the city of New York, for 
example, in 1908, was $143,000,000. The Budget of the State 
of New York in the same year was $34,000,000. In addition 
to the Budget, the city of New York issued, for municipal pur¬ 
poses, in the year 1908, $82,000,000 of bonds ; the State of New 
York $15,000,000 of bonds. It is apparent, therefore, that 
the pecuniary motive for desiring to control city expenditure, 
which appeals to the professional politician, operates more 
strongly in cities than in the States. All of these considerations 
tend to make the political organization of the dominant party, 
in a city, more and more of a machine; so that the problem in 



670 


THE STATE GOVERNMENTS 


PART II 


cities, where the political majority is one-sided, is how to get 
good government despite the machine of the dominant party, 
rather than how to get it through that party. The same ten¬ 
dencies, of course, work in the minority party as well as in the 
majority party; but the habit of Americans of voting on local 
questions on the lines of national party makes the majority 
party, for the most part, the one to be dreaded. The danger 
from the minority party machine, in a city, comes when its 
leaders make terms with the leaders of the majority party for 
mutual advantage. The idea of “ a community of interest ” is 
not confined to the railroads of the United States, but finds its 
place in politics as well, and especially in municipal politics, for 
the reasons that have been given. 

Of course this difficulty has been recognized ever since Ameri¬ 
cans began to have experience with large cities; and the effort 
has been constant to minimize it. There has grown up in the 
cities of the country a very considerable body of voters who will 
not vote any longer on local issues simply on national lines. 
They vote gladly with their national party, if they think that 
their national party is right on the local question at issue; but 
this body of independents does not hesitate to vote against the 
nominee of their party if they think the other party better de¬ 
serves their support. This spirit of local independence in voting 
is the spirit which ultimately will secure good government for the 
American cities. The changes of charter which have been ad¬ 
vocated have their principal value in the encouragement which 
they give to this spirit of independent voting, by making success 
at an election more fruitful of good results. It is evidently 
idle to set up machinery that is well calculated to give home rule, 
if the people of the city itself are determined to follow the 
old habit of permitting the city to be used as a pawn in the game 
of national politics. Deep-seated as this habit is in the Ameri¬ 
can people, it has yielded and will yield to an effective oppor¬ 
tunity, once gained, by the people of a city to control their own 
local affairs. 

In the last ten years, in many of the smaller cities of the coun¬ 
try, the effort has been made to weaken the power of the muni¬ 
cipal machine by the system of Direct Primaries, and to increase 
the power of the people of the city over their own affairs by the 
adoption of “the initiative, ” “the referendum,” and “the recall.” 
The system of “ Direct Primaries,” so called, has been applied in 



CHAP. LII 


MUNICIPAL GOVERNMENT 


671 


a number of States, not only in cities, but as of universal 
application to all nominations made in the State. Ordinarily, 
in American communities, nominations are made by party con¬ 
ventions, and the delegates who form these conventions are chosen 
from political divisions of various kinds. It is believed by many 
Americans that political leaders get their abnormal power by the 
control of this party machinery, as a result of which they can 
generally control party nominations. The Direct Primary plan 
is an effort to compel such leaders to get the popular endorse¬ 
ment of the voters of their party before nominations can be 
known as party nominations. Under the Direct Primary sys¬ 
tem the people of the same party vote at the primaries directly 
for the persons to be chosen as the candidates of the party, the 
primary thus becoming a sort of preliminary election. It is too 
soon to say positively whether this system, in its general applica¬ 
tion, will lead to a betterment of conditions at large ; but there is 
some reason to hope that it may do so in small districts. The 
difficulty is that the system of Direct Nominations itself involves a 
great deal of machinery ; and it is not at all clear that the profes¬ 
sional political element will not learn how to dominate this machin¬ 
ery as well as that which now exists. Possibly, in cities, nomination 
by petition may take the place of both the convention and the 
Direct Primary systems. It is indicative of popular opinion, 
at the moment, that the question was submitted to the people 
of Boston in November, 1909, whether nominations for mayor and 
other local officers should be made by the Convention System or 
by Petition. By a majority of 3000, out of a vote of 74,000, the 
people of Boston voted in favour of nomination of local officers 
by petition, without the use of any party machinery whatever. 
It will be exceedingly interesting to observe the outcome of 
this experiment in a city like Boston ; for it is not only one of the 
larger cities of the country, but it is also an old city. If the plan 
succeeds in Boston, it is likely to be adopted widely in other cities. 
If it should not work well there, it is likely to put a check to 
further developments in this direction on the part of the large 
cities of the country. The writer is inclined to think, that, in 
order to work well, the plan of nominating in cities by petition 
must be supplemented by two other provisions : first, a majority 
vote must be required for election; and, second, in the event of 
a second ballot being necessary, the candidates to be voted for 
the second time should be the two who receive the highest and 



672 


THE STATE GOVERNMENTS 


PART n 


the next to the highest number of votes at the first voting. 
When an election is possible by a plurality vote, it is too easy 
for the machine to divide its enemies to their destruction. 

In the smaller cities there appears to be no reason why the 
Direct Primary system should not work well. The difficulties 
of the system appear when the vote to be got out becomes so 
large that extensive machinery is required to get the vote out 
for the primary election, precisely as such machinery is required 
to get the vote out for the official election. On the other hand, 
it is certainly true, that, owing to the habit of the American 
people of voting with their national party, the nomination by 
the dominant party in probably nine-tenths of the constituencies 
of the United States, whether you speak of a State, or of a city, 
or of a district within any State or city, is equivalent to an elec¬ 
tion. There appears to be every reason, therefore, why the 
people should be permitted to make their wishes effectually 
known at the time when the nomination is made. The practical 
question is, whether the method of Direct Nomination will do 
this any more effectively than the method of nomination by 
convention. It will not be surprising if the fine comes to be 
drawn, between the two methods, somewhat by the size of the 
vote to be cast. 

In some cities of California, the largest of which to adopt 
the plan is Los Angeles, with a population of over 300,000, the 
system of “recall” has been adopted ; which signifies, ordinarily, 
that upon the filing of a petition, asking for the recall of any 
official before the expiration of his term, a special election shall 
be held to determine whether or not the official shall be permitted 
to serve out his term. At such special election the official con¬ 
cerned may be a candidate for re-election or not, at his pleasure. 
The most important instance in which a recall has been resorted 
to was in the city of Los Angeles, where a mayor whose adminis¬ 
tration was unsatisfactory, was subjected to the “recall.” 
The mayor declined to appeal to the verdict of the people ; and 
accordingly another man was elected to serve out the remainder 
of his term. A modification of this system is embodied in the 
new charter of Boston. The mayor is elected for four years; but 
at the regular stated election during his second year, the question 
is submitted to the voters of the city, “Shall there be an election 
for mayor at the next municipal election ? ” If a majority of the 
voters vote in the affirmative, a new election ensues. On the 



MUNICIPAL GOVERNMENT 673 


other hand, a mayor has the right, if he wishes, to withdraw from 
the office, at his own pleasure, at the end of the second year. 
All of these movements are interesting, because they show how 
steadily the people of the cities of the United States are striving, 
first, to acquire the necessary power for complete local self- 
government ; and, next, to make that local government com¬ 
pletely responsive to the popular will. 

The ‘‘initiative” and the “referendum,” in their relation 
to the cities of the United States, are not different in substance 
from the ‘ ‘ initiative ”and the “referendum ” as.practised in Switzer¬ 
land. It has been claimed that, in the matter of franchises, for 
example, the referendum ” would be a great protection against 
the abuse of power to grant franchises. In many places it doubt¬ 
less is; but there is at least one case upon record, according to 
Judge Lindsey, of Denver, Colorado, in which the submission 
of a franchise to the vote of the people of Denver resulted in 
debauching the electorate of a whole city on a scale never 
known before. Private persons who were interested in securing 
the franchise were entirely ready to pay money to get it, even in 
such a way as that. On the other hand, Kansas City, through 
the “referendum,” has recently defeated a franchise which was 
recommended by its Common Council. 

This leads to the consideration of the control of franchises 
in the public interest, and of their relation to city governments. 
Only so recently as when this chapter was revised, in 1906, 
the tendency to adopt both municipal ownership and operation 
of franchises, as a cure for the unregulated granting of franchises 
to private corporations, seemed likely to be very widely adopted. 
The tendency towards municipal ownership has happily strength¬ 
ened in the interval; but the indications to-day are that the 
tendency towards municipal operation of franchises is less strong 
now than then. This is largely due to the effect of the Report 
upon Municipal Ownership and Operation, prepared in 1907, 
under the auspices of the National Civic Federation. The 
Commission which prepared this Report was thoroughly repre¬ 
sentative, not only of those who believed in municipal owner¬ 
ship and operation, but also of those who were opposed to this 
plan. It was equally representative, both of capitalists and of or¬ 
ganized labour. The tendency of organized labour to favour mu¬ 
nicipal operation as well as municipal ownership, has been greatly 
weakened by that Report. Many of the leaders of organized 
2 x 





674 


THE STATE GOVERNMENTS 


PART II 


labour in the United States feel that they can obtain better terms 
from private corporations operating such franchises than they 
can from the government. The American does not enjoy Govern¬ 
ment service, per se, as much as he enjoys the independence of a 
private occupation; and organized labour recognizes that the 
conditions affecting Governmental action are less friendly to 
its ambitions than those which apply to private corporations. 
The salaries of Government employees, for example, are fixed 
by law, and only so much money is available for the payment of 
salaries. Many of the leaders of organized labour feel that, in 
the long run, labour can get a larger share of the earnings, under 
private control, than under governmental control. This is 
one of the reasons affecting the change in public sentiment; but, 
whether this explanation of the fact be complete or not, the 
change in sentiment is very real. In the meanwhile, in the State 
of New York, a method has been instituted for controlling the 
operations of public service corporations which thus far has 
worked exceedingly well. Two Public Service Commissions 
have been created by the legislature, with large powers, one for 
New York City, and one for the rest of the State. Such corpo¬ 
rations are brought under official supervision in ways that protect 
the public interests very much more completely than the public 
interests were ever protected before in the State of New York. 
This development, also, has weakened the tendency towards 
municipal operation of public franchises, because it decreases 
the abuses under which the public used to suffer through private 
administration of public franchises. The feeling is becoming 
very general throughout the cities of the United States that 
local franchises should not be given in perpetuity ; and that the 
public, as well as the grantees, should profit from the grant. 
By constitutional restrictions upon the right to grant franchises, 
by such methods as have been described as prevailing in the 
State of New York, and by the referendum, the cities of the 
country are endeavouring to secure a larger share of the benefit 
than formerly accrued to the community from the operation of 
franchises in rapidly growing centres. It is not too much to say 
that the old era in this respect is at an end. Some improper 
grants may yet be made here and there; but the conviction is 
widespread that franchises are a public asset, and the public is 
determined to secure its share of the profits accruing from their 
use. 



CHAP. LI1 


MUNICIPAL GOVERNMENT 


675 


In the last revision of this chapter, it was said that the only 
organic problem in connection with the charters of cities which 
apparently remains as far from solution as ever, is that which 
concerns the legislative branch of the city government. That 
statement is not quite so true to-day as it was then. The diffi¬ 
culty never has been in devising a local legislature that theoreti¬ 
cally would be satisfactory. The difficulty always has been to 
secure the election of suitable persons to the city legislature. 
The cities which have chosen the Galveston or Commission plan 
of government claim to have made great advances in this par¬ 
ticular by reducing the number of persons to be elected to a small 
body elected from the city at large, and by giving to them execu¬ 
tive as well as legislative powers, such as are enjoyed by a board 
of directors in a business corporation. This, it is claimed, has 
enabled them to secure a better type of men in the city govern¬ 
ment. As was pointed out in this chapter, when last revised, 
the only large city in the United States which has importantly 
improved the character of its aldermen as a whole is the city 
of Chicago. This fact remains true to the present time. Mr. 
Horace E. Deming, in his valuable book on “The Government of 
American Cities,” published in 1909, to which the writer is 
indebted for many of the details which have enabled him to 
bring his information down to date, makes the interesting sug¬ 
gestion, that the reason why Chicago has succeeded in doing 
this, when no other large city in the country has done it, is be¬ 
cause, in the case of Chicago, the people had to do it, in order 
to get anything done at all. Mr. Deming points out that a 
Constitutional amendment had deprived the legislature of 
Illinois of all power of legislating for the city of Chicago. 
The people of Chicago, therefore, realized, that, in order to get 
things done in the city of Chicago, they must get them done by 
their local legislature. Mr. Deming’s claim is, that, when the 
people of the city of Chicago found that they had no other 
alternative, they devoted themselves intelligently and success¬ 
fully to the problem of improving the personnel of their local 
legislature. He claims that the same result would follow in any 
American city under corresponding conditions. There is much 
to be said for this point of view. 

The movement in favour of requiring uniform accounting from 
cities, alluded to in the last edition, continues to make prog¬ 
ress. Three years ago, Ohio was the only State which had 



676 


THE STATE GOVERNMENTS 


PART II 


adopted this requirement. Since then, the States of Massa¬ 
chusetts, New York, Indiana, West Virginia, Colorado, and 
Wyoming have moved in this direction, wholly or in part, and 
at least three other States have it under consideration. 

This outline sufficiently emphasizes present marked tenden¬ 
cies in municipal government, which show their effect in legisla¬ 
tion. It may truthfully be said that the general standard of 
local administration is higher to-day, in most cities, than it was 
twenty years ago. This is undoubtedly so in the city of New 
York; and, so far as the observation of one man can go, it is 
generally true elsewhere. But there has been, within the last 
twenty years, a change in the form which municipal corruption 
has taken that amounts almost to a revolution. In the earlier 
days, officials who were dishonest stole openly from the public 
treasury; but, beginning with the overthrow of Tweed in the 
city of New York in 1871, that was seen to be a method so hazard¬ 
ous as to have fewer and fewer followers. The more modern 
method was never more succinctly stated than by a leader of 
Tammany Hall in the heyday of his power in the city of New 
York, when he publicly avowed before a Legislative Committee, 
that “he was in politics for his own pocket all the time.” By 
this he meant that, indirectly, he made his political power a 
source of personal advantage to himself all the time. Those 
who wanted franchises, for example, must make their peace with 
“the boss” before they could have them. Those who wanted 
contracts must do the same thing. Those who wanted appoint¬ 
ments or nominations must do likewise. This system of “graft,” 
as it is now popularly called, has permeated the whole political 
organism. Only recently, a book has been written about another 
prominent member of Tammany Hall, in which that member 
argues openly, that there is such a thing as “honest graft”; 
that is to say, that it is entirely legitimate for men, having politi¬ 
cal power, to use it for their personal advantage, provided they 
do it in such a way as not to expose themselves to the criminal law. 
This seems to have been the idea of not a few men until recently 
connected with the large life-insurance companies of the United 
States; and it is hard to say whether it has spread from such 
bodies as Tammany Hall into private business, or the reverse. 
The writer inclines to the former view; for it is manifestly im¬ 
possible for a city to sustain, year after year, an organization 
like Tammany Hall, which avows such principles, without de- 



CHAP. LII 


MUNICIPAL GOVERNMENT 


677 


grading the moral sense of the citizens, in all walks of life. In 
both cases, it is caused in part, without doubt, by the unexampled 
prosperity through which the country has been passing during 
the last few years. No demoralizing influence which unchecked 
prosperity can exert was lacking in the United States from 1898 
until 1907. The encouraging fact is, that when this sort of dis¬ 
honesty is compelled to face the light of day, whether in public 
or in private life, it is openly and unhesitatingly condemned by 
the public conscience. Tammany Hall has been defeated twice, 
not to say three times, within the last fifteen years ; a fate that 
befell it substantially only once in the previous sixty years. 

In a country so large as the United States, it is impossible to 
generalize as to all the cities in the country ; and yet it is doubt¬ 
less true, that, in the city of New York, tendencies that exist 
everywhere are to be found in their most extreme development. 
It may happily be said to-day, as was said when this chapter 
was first written, that those who are students of the problems of 
city government in the United States are by no means discour¬ 
aged. They find, indeed, in the interval under review, much 
more ground for encouragement than for loss of courage. It is 
true to-day, as it was true then, that the cities of the United 
States are the least successful parts of American administration; 
but it is still truer to-day than it was twenty years ago, that, 
under conditions of unexampled difficulty, such as are outlined 
in this chapter, they have not only made important progress, 
but they have also shown a capacity constantly to improve. 

The shortcomings of the American city have been admitted, 
and the effort has been made to show the peculiar difficulties 
with which such a city has to deal. It is much to be able to 
say that, despite all of these difficulties, the average American 
city is not going from bad to worse. Life and property are 
more secure in almost all of them than they used to be. Certainly 
there has been no decrease of security such as might reasonably 
have been expected to result from increased size, and from an 
increasing diversity of population. Forty years ago it 
was impossible to have a fair election in New York or 
Brooklyn. To-day, under the present system of registry laws, 
every election is held with substantial fairness, though the 
most recent election has shown the necessity for a change in 
the form of the ballot. The health of our cities does not 
deteriorate, but on the average improves. So that in large 




678 


THE STATE GOVERNMENTS 


PART II 


and fundamental matters, the progress, if slow, is steady in the 
direction of better things. It is not strange that a people at first 
almost wholly rural, conducting an experiment in city govern¬ 
ment for which there is absolutely no precedent, under conditions 
of exceptional difficulty, should have to stumble towards correct 
and successful methods through experiences that are both costly 
and distressing. There is no other road towards improvement 
in the coming time. But it is probable that in another decade 
Americans will look back on some of the scandals of the present 
epoch in city government, with as much surprise as they now 
regard the effort to control fires by the volunteer fire depart¬ 
ment, which was insisted upon, even in the city of New York, 
until within fifty years. As American cities grow in stability 
and provide themselves with the necessary working plant, they 
approximate more and more in physical conditions to those 
which prevail in most European cities. 

It may justly be said, therefore, that the American city, if 
open to serious blame, is also deserving of much praise. Every 
one understands that universal suffrage has its drawbacks, and 
in cities these defects become especially evident. It would be 
uncandid to deny that many of the problems of American cities 
spring from this factor, especially because the voting population 
is continually swollen by foreign immigrants whom time alone 
can educate into an intelligent harmony with the American 
system. In this Americanizing of the large immigration into 
the United States, the American cities, through their public- 
school systems, are doing their full share and are doing it rapidly 
and well. Zangwill likens the United States to a melting pot. 
But because there is scum upon the surface of a boiling liquid, 
it does not follow that the material, nor the process to which it is 
subjected, is itself bad. Universal manhood suffrage, as it exists 
in the United States, is not only a great element of safety in the 
present day and generation, but it is perhaps the mightiest educa¬ 
tional force to which the masses of men ever have been exposed. 
The intelligent and efficient American working man is largely the 
product of universal suffrage. In a country where wealth has 
no hereditary sense of obligation to its neighbours, it is hard to 
conceive what would be the condition of society if universal 
suffrage did not compel every one having property to consider, 
to some extent at least, the well-being of the whole community. 

It is probable that no other system of government would have 



CHAP. LII 


MUNICIPAL GOVERNMENT 


679 


been able to cope any more successfully, on the whole, with the 
actual conditions that American cities have been compelled to 
face. It may be claimed for American institutions even in 
cities, that they lend themselves with wonderfully little friction 
to growth and development and to the peaceful assimilation 
of new and strange populations. Whatever defects have marked 
the progress of such cities, no one acquainted with their history 
will deny that since their problem assumed its present aspect, 
progress has been made, and substantial progress, from decade 
to decade. The problem will never be anything but a most 
difficult one, but with all its difficulties there is every reason to 
be hopeful. 













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APPENDIX 


NOTE TO CHAPTER III 

ON CONSTITUTIONAL CONVENTIONS 

In America it is always by a convention (i.e. a representative body 
called together for some occasional or temporary purpose) that a constitu¬ 
tion is framed. It was thus that the first constitutions for the thirteen 
revolting colonies were drawn up and enacted in 1776 and the years fol¬ 
lowing ; and as early as 1780 the same plan had suggested itself as the 
right one for framing a constitution for the whole United States. 1 Recog¬ 
nized in the Federal Constitution (Art. v.) and in the successive Con¬ 
stitutions of the several States as the proper method to be employed 
when a new constitution is to be prepared, or an existing constitution 
revised throughout, it has now become a regular and familiar part of the 
machinery of American government, almost a necessary part, because all 
American legislatures are limited by a fundamental law, and therefore 
when a fundamental law is to be repealed or largely recast, it is desirable 
to provide for the purpose a body distinct from the ordinary legislature. 
Where it is sought only to change the existing fundamental law in a few 
specified points, the function of proposing these changes to the people for 
their acceptance may safely be left, and generally is left, to the legislature. 
Originally a convention was conceived of as a sovereign body, wherein 
the full powers of the people were vested by popular election. It is now, 
however, usually an advisory body, which prepares a draft of a new con¬ 
stitution and submits it to the people for their acceptance or rejection. 2 
And it is not deemed to be sovereign in the sense of possessing the plen¬ 
ary authority of the people, for its powers may be, and now almost invari¬ 
ably are, limited by the statute under which the people elect it. 3 

Questions relating to the powers of a Constitutional Convention have 
several times come before the courts, so that there exists a small body of 
law as well as a large body of custom and practice regarding the rights 
and powers of such assemblies. Into this law and practice I do not pro¬ 
pose to enter. But it is worth while to indicate certain advantages which 

1 It is found in a private letter of Alexander Hamilton (then only twenty- 
three years of age) of that year. 

2 As to Kentucky, see p. 433. 

3 The State Conventions which carried, or rather affected to carry, the seced¬ 
ing Slave States out of the Union, acted as sovereign bodies. Their proceedings, 
however, though clothed with legal forms, were practically revolutionary. 

681 


682 


APPENDIX 


have been found to attach to the method of entrusting the preparation of 
a fundamental instrument of government to a body of men specially 
chosen for the purpose instead of to the ordinary legislature. The topic 
suggests interesting comparisons with the experience of Prance and other 
European countries in which constitutions have been drafted and en¬ 
acted by the legislative, which has been sometimes also practically the 
executive, authority. Nor is it wholly without bearing on problems 
which have arisen in England, where Parliament twice found itself, and 
may find itself again, invited to enact what would be in substance a new 
constitution for a part of the United Kingdom. 

An American Constitutional Convention, being chosen for the sole 
purpose of drafting a constitution, and having nothing to do with the 
ordinary administration of government, no influence or patronage, no 
power to raise or appropriate revenue, no opportunity of doing jobs for 
individuals or corporations, is not necessarily elected on party lines or 
in obedience to party considerations. 1 Hence men comparatively indif¬ 
ferent to party are sometimes elected; while those who seek to enter a 
legislature for the sake of party advancement or the promotion of some 
private gainful object do not generally care to serve in a convention. 

When the convention meets, it is not, like a legislature, a body strictly 
organized by party. A sense of individual independence and freedom 
may prevail unknown in legislatures. Proposals have therefore a chance 
of being considered on their merits. A scheme does not necessarily com¬ 
mand the support of one set of men nor encounter the hostility of another 
set because it proceeds from a particular leader or group. And as the 
ordinary party questions do not come up for decision while its delibera¬ 
tions are going on, men are not thrown back on their usual party affili¬ 
ations, nor are their passions roused by exciting political issues. 

Having no work but constitution-making to consider, a convention is 
free to bend its whole mind to that work. Debate has less tendency to 
stray off to irrelevant matters. Business advances because there are no 
such interruptions as a legislature charged with the ordinary business of 
government must expect. 

Since a convention assembles for one purpose only, and that a purpose 
specially interesting to thoughtful and public-spirited citizens, and since 
its duration is short, men who would not care to enter a legislature, men 
pressed by professional labours, or averse to the “ rough and tumble ” of 
politics, a class large in America and increasing in Europe, are glad to 
serve on it, while mere jobbers or office-seekers find little to attract them 
in its functions. 2 Thus the level of honesty, even more than of ability, 
is higher in conventions than in legislatures. 

1 The questions of practical importance to the States which a State Con¬ 
vention deals with are very often not in issue between the two State parties, 
seeing that the latter are formed on national lines. 

2 Many of the men conspicuous in the public life of Massachusetts during the 
succeeding thirty yeare first made their mark in the Constitutional Convention 
of 1853. The draft framed by that Convention was, however, rejected by the 
people. The new Constitution for New York, framed by the Convention of 
1867, was also lost at the polls. That Convention was remarkable as being 
(according to Judge Jameson) the only one in which the requirement that a 




ON CONSTITUTIONAL CONVENTIONS 


683 


The fact that the constitution when drafted has to be submitted to the 
people, by whose authority it will (if accepted) be enacted, gives to the 
convention a somewhat larger freedom for proposing what they think 
best than a legislature, courting or fearing its constituents, commonly 
allows itself. As the convention vanishes altogether when its work is 
accomplished, the ordinary motives for popularity-hunting are less potent. 
As it does not legislate but merely proposes, it need not fear to ask the 
people to enact what may offend certain persons or classes, for the odium, 
if any, of harassing these classes will rest with the people. And as the 
people must accept or reject the draft en bloc (unless in the rare case 
where provision is made for voting on particular points separately), more 
care is taken in preparing the draft, in clearing it ,of errors and repug¬ 
nances, than a legislature capable of repealing or altering in its next 
session what it now provides, bestows on the details of its measures. 

Those who are familiar with European parliaments may conceive that 
as a set-off to these advantages there will be a difficulty in getting a num¬ 
ber of men not organized by parties to work promptly and efficiently, 
that a convention will be, so to speak, an amorphous body, that if it has 
no leaders nor party allegiance it will divide one way to-day and another 
way to-morrow, that the abundance of able men will mean an abundance 
of doctrinaire proposals and a reluctance to subordinate individual pre¬ 
possessions to practical success. Admitting that such difficulties do 
sometimes arise, it may be observed that in America men quickly organ¬ 
ize themselves for any and every purpose, and that doctrinairism is there 
so uncommon a fault as to be almost a merit. When a complete new 
constitution is to be prepared, the balance of convenience is decidedly in 
favour of giving the work to a convention, for although conventions are 
sometimes unwise, they are usually composed of far abler men than those 
who fill the legislatures, and discharge their function with more wisdom 
as well as with more virtue. But where it is not desired to revise the 
whole frame of government, the simpler and better plan is to proceed by 
submitting to the people specific amendments, limited to particular pro¬ 
visions of the existing constitution. This has been latterly the method 
most generally employed in improving State constitutions. Recently, 
however, a prescribed number of the citizens have been in six Western 
States empowered by their Constitutions to propose by means of the 
Initiative amendments to the Constitution, which are thereupon sub¬ 
mitted to popular vote without the intervention either of the legislature 
or of a convention. (See page 741, Extracts from the Constitution 
(1907) of Oklahoma.) 

The above remarks are of course chiefly based on the history of State 
conventions, because no national constitutional convention has sat since 
1787. But they apply in principle to any constitution-making body. 

delegate must be resident in the district electing him was dispensed with (Constit 
Conventions, § 267). 




684 


APPENDIX 


NOTE TO CHAPTER IY 

WHAT THE FEDERAL CONSTITUTION OWES TO THE CONSTITUTIONS OF 
THE SEVERAL STATES 

The following statement of the provisions of the Federal Constitution 
which have been taken from or modelled upon State constitutions, is 
extracted from a valuable article by the late Mr. Alexander Johnston in 
the New Princeton Review for September, 1887 : — 

“ That part of the Constitution which has attracted most notice 
abroad, is probably its division of Congress into a Senate and a House of 
Representatives, with the resulting scheme of the Senate as based on the 
equal representation of the States. It is probably inevitable that the 
upper or hereditary House in foreign legislative bodies shall disappear in 
time. And it is not easy to hit on any available substitute ; and English 
writers for examples, judging from the difficulty of finding a substitute 
for the House of Lords, have rated too high the political skill of the Con¬ 
vention in hitting upon so brilliant a success as the Senate. But the 
success of the Convention was due to the antecedent experience of the 
States. Excepting Pennsylvania and Vermont, which then gave all 
legislative powers to one House, and executive powers to a governor and 
council, all the States had bicameral systems in 1787. 1 

“ The name ‘Senate’ was used for the Upper House in Maryland, 
Massachusetts, New York, North Carolina, New Hampshire, and South 
Carolina and Virginia; and the name ‘House of Representatives,’ for 
the Lower House, was in use in Massachusetts, New Hampshire, and 
South Carolina, as well as in Pennsylvania and Vermont. 

“ The rotation, by which one-third of the Senate goes out every two 
years, was taken from Delaware, where one-third went out each year, 
New York (one-fourth each year), Pennsylvania (one-third of the council 
each year), and Virginia (one-fourth each year). The provisions of the 
whole fifth section of Art. i., the administration of the two Houses, their 
power to decide the election of their members, make rules and punish 
their violation, keep a journal, and adjourn from day to day, are in so 
many State constitutions that no specification is needed for them. 

“ The provision that money-bills shall originate in the House of Repre¬ 
sentatives is taken almost word for word from the Constitutions of Massa¬ 
chusetts and New Hampshire, as is the provision, which has never been 
needed, that the President may adjourn the two Houses when they can¬ 
not agree on a time of adjournment. The provision for a message is from 
the Constitution of New York. All the details of the process of impeach¬ 
ment as adopted by the Convention may be found in the Constitutions of 
Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, 

1 Georgia, however, had not till 1789 a true second chamber, her constitu¬ 
tion of 1777 having merely created an executive council elected by the Assem¬ 
bly from among its own members. 

Vermont was not one of the thirteen original States, but was a semi-inde¬ 
pendent commonwealth, not a member of the Confederation of 1781, not repre¬ 
sented in the Convention of 1787, and not admitted to the Union till 1791. 



THE FEDERAL CONSTITUTION * 


685 


South Carolina, Vermont, Virginia, even to the provision in the South 
Carolina system that conviction should follow the vote of two-thirds of 
the members present. (It should be said, however, that the limitation of 
sentence in case of conviction to removal from office and disqualification 
for further office-holding is a new feature.) Even the much-praised pro¬ 
cess of the veto is taken en bloc from the Massachusetts Constitution of 
1780, and the slight changes are so evidently introduced as improvements 
on the language alone as to show that the substance was copied. 

“ The adoption of different bases for the two Houses — the House of 
Representatives representing the States according to population, while 
the Senate represented them equally — was one of the most important 
pieces of work which the Convention accomplished as well as the one 
which it reached most unwillingly. All the States had been experiment¬ 
ing to find different bases for their two Houses. Virginia had come near¬ 
est to the appearance or the final result in having her Senate chosen by 
districts and her representatives by counties; and, as the Union already 
had its ‘districts’ formed (in the States), one might think that the Con¬ 
vention merely followed Virginia’s experience. But the real process was 
far different and more circuitous. There were eleven States represented 
in the Convention, New Hampshire taking New York’s place when the 
latter withdrew, and Rhode Island sending no delegates. Roughly speak¬ 
ing, five States wanted the ‘Virginia plan’ above stated; five wanted one 
House as in the Confederation with State equality in it; and one (Con¬ 
necticut) had a plan of its own to which the other ten States finally ac¬ 
ceded. The Connecticut system since 1699, when its legislature was 
divided into two Houses, had maintained the equality of the towns in the 
Lower House, while choosing the members of the Upper House from the 
whole people. In like manner its delegates now proposed that the States 
should be equally represented in the Senate, while the House of Repre¬ 
sentatives, chosen from the States in proportion to population, should 
represent the people numerically. The proposition was renewed again 
and again for nearly a month until the two main divisions of the Conven¬ 
tion, unable to agree, accepted the ‘Connecticut compromise,’ as Ban¬ 
croft calls it, and the peculiar constitution of the Senate was adopted. 

“ The President’s office was simply a development of that of the gov¬ 
ernors of the States. The name itself had been familiar; Delaware, New 
Hampshire, Pennsylvania, and South Carolina had used the title of 
President instead of that of Governor. In all the States the Governor 
was commander-in-chief, except that in Rhode Island he was to have the 
advice of six assistants, and the major part of the freemen, before enter¬ 
ing upon his duties. The President’s pardoning power was drawn from 
the example of the States ; they had granted it to the governors (in some 
cases with the advice of a council) in all the States except Connecticut, 
Rhode Island, and Georgia, where it was retained to the legislature, and 
in South Carolina, where it seems to have been forgotten in the Constitu¬ 
tion of 1778, but was given to the governor in 1790. The governor was 
elected directly by the people in Connecticut, Massachusetts, New York, 
and Rhode Island, and indirectly by the two Houses in the other eight 
States; and in this nearly equal division we may, perhaps, find a reason 
for the Convention’s hesitation to adopt either system, and for its futile 



686 


APPENDIX 


attempt to introduce an electoral system, as a compromise. The power 
given to the Senate of ratifying or rejecting the President’s appointments 
seems to have been an echo of New York’s council of appointment; the 
most strenuous and persistent efforts were made to provide a council to 
share in appointments with the President; the admission of the Senate 
as a substitute was the furthest concession which the majority would 
make ; and hardly any failure of details caused more heart-burnings than 
the rejection of this proposed council for appointments. 

“ The President’s power of filling vacancies, by commissions to expire 
at the end of the next session of the Senate, is taken in terms from the 
Constitution of North Carolina. 

“Almost every State prescribed a form of oath for its officers; the 
simple and impressive oath of the President seems to have been taken 
from that of Pennsylvania, with a suggestion, much improved in lan¬ 
guage, from the oath of allegiance of the same State. The office of vice- 
president was evidently suggested by that of the deputy, or lieutenant- 
governor (in four States the vice-president) of the States. The exact 
prototype of the office of vice-president is to be found in that of the lieu- 
tenant-governor of New Fork. He was to preside in the Senate, with¬ 
out a vote, except in case of a tie, was to succeed the governor, when suc¬ 
cession was necessary, and was to be succeeded by the President pro 
tempore of the Senate. 

“ The provisions for the recognition of inter-State citizenship, and for 
the rendition of fugitive slaves and criminals, were a necessity in any such 
form of government as was contemplated, but were not at all new. They 
had formed a part of the eighth article of the New England Confederation 
of 1643. Finally the first ten amendments, which were tacitly taken as a 
part of the original instrument, are merely a selection from the substance 
or the spirit of the Bills of Rights which preceded so many of the State 
constitutions. 

“ The most solid and excellent work done by the Convention was its 
statement of the powers of Congress (in § 8 of Art. i.) and its definition 
of the sphere of the Federal judiciary (in Art. iii). The results in both of 
these cases were due, like the powers denied to the States and to the 
United States (in §§ 9 and 10 of Art. i.), to the previous experience of 
government by the States alone. For eleven years or more (to say noth¬ 
ing of the antecedent colonial experience) the people had been engaged 
in their State governments in an exhaustive analysis of the powers of 
government. The failures in regard to some, the successes in regard to 
others, were all before the Convention for its consideration and guidance. 

“Not creative genius, but wise and discreet selection was the proper 
work of the Convention; and its success was due to the clear perception 
of the antecedent failures and successes, and to the self-restraint of its 
members. 

“ The (presidential) electoral system was almost the only feature of 
the Constitution not suggested by State experience, 1 almost the only 

1 But it is well observed by Mr. J. H. Robinson (Original and Derived Features 
of the United States Constitution, p. 29) that this system may have been sug¬ 
gested by the Constitution of Maryland (1776), which provided for a choice 
of the State Senators by a body of electors chosen every five years by the people 



RULES OF THE SENATE 


687 


feature which was purely artificial, not a natural growth; it was the one 
which met with least criticism from contemporary opponents of the 
Constitution and most unreserved praise from the Federalist; and de¬ 
mocracy has ridden right over it.” 


NOTE TO CHAPTER X 

EXTRACTS FROM THE RULES OF THE SENATE 

A quorum shall consist of a majority of the senators, duly chosen and 
sworn. 

The legislative, the executive, the confidential legislative proceedings, 
and the proceedings when sitting as a Court of Impeachment, shall each 
be recorded in a separate book. 

When the yeas and nays are ordered, the names of senators shall be 
called alphabetically; and each senator shall, without debate, declare his 
assent or dissent to the question, unless excused by the Senate ; and no 
senator shall be permitted to vote after the decision shall have been 
announced by the presiding officer, but may for sufficient reasons, with 
unanimous consent, change or withdraw his vote. 

When a senator declines to vote on call of his name, he shall be re¬ 
quired to assign his reasons therefor, and on his having assigned them, 
the presiding officer shall submit the question to the Senate, “ Shall the 
senator for the reasons assigned by him, be excused from voting ? ” which 
shall be decided without debate. 

In the appointment of the standing committees, the Senate, unless 
otherwise ordered, shall proceed by ballot to appoint severally the chair¬ 
man of each committee, and then, by one ballot, the other members 
necessary to complete the same. A majority of the whole number of 
votes given shall be necessary to the choice of a chairman of a standing 
committee, but a plurality of votes shall elect the other members thereof. 
All other committees shall be appointed by ballot, unless otherwise 
ordered, and a plurality of votes shall appoint. 

At the second or any subsequent session of a Congress, the legislative 
business which remained undetermined at the close of the next preceding 
session of that Congress shall be resumed and proceeded with in the same 
manner as if no adjournment of the Senate had taken place. 

On a motion made and seconded to close the doors of the Senate, on 
the discussion of any business which may, in the opinion of a senator, 
require secrecy, the presiding officer shall direct the galleries to be cleared; 
and during the discussion of such motion the doors shall remain closed. 

When the President of the United States shall meet the Senate in the 
Senate chamber for the consideration of executive business, he shall have 
a seat on the right of the presiding officer. When the Senate shall be 
convened by the President of the United States to any other place, the 

for this purpose. Mr. Robinson rightly disapproves Sir H. Maine’s comparh 
son of the electoral system of the Romano-Germanic Empire. 




688 


APPENDIX 


presiding officer of the Senate and the senators shall attend at the place 
appointed, with the necessary officers of the Senate. 

When acting upon confidential or executive business, unless the same 
shall be considered in open executive session, the Senate chamber shall 
be cleared of all persons except the secretary, the chief clerk, the prin¬ 
cipal legislative clerk, the executive clerk, the minute and journal clerk, 
the sergeant-at-arms, the assistant doorkeeper, and such other officers as 
the presiding officer shall think necessary, and all such officers shall be 
sworn to secrecy. 

All confidential communications made by the President of the United 
States to the Senate shall be by the senators and the officers of the Senate 
kept secret; and all treaties which may be laid before the Senate, and all 
remarks, votes, and proceedings thereon, shall also be kept secret until 
the Senate shall, by their resolution, take off the injunction of secrecy, 
or unless the same shall be considered in open executive session. 

Any senator or officer of the Senate who shall disclose the secret or 
confidential business or proceedings of the Senate shall be liable, if a 
senator, to suffer expulsion from the body; and if an officer, to dismissal 
from the service of the Senate, and to punishment for contempt. 

On the final question to advise and consent to the ratification of a 
treaty in the form agreed to, the concurrence of two-thirds of the senators 
present shall be necessary to determine it in the affirmative; but all other 
motions and questions upon a treaty shall be decided by a majority vote, 
except a motion to postpone indefinitely, which shall be decided by a vote 
of two-thirds. 

When nominations shall be made by the President of the United States 
to the Senate, they shall, unless otherwise ordered, be referred to ap¬ 
propriate committees; and the final question on every nomination shall 
be, “Will the Senate advise and consent to this nomination ? ” Which 
question shall not be put on the same day on which the nomination is 
received, nor on the day on which it may be reported by a committee, 
unless by unanimous consent. 

All information communicated or remarks made by a senator, when 
acting upon nominations, concerning the character or qualifications of 
the person nominated, also all votes upon any nomination, shall be kept 
secret. If, however, charges shall be made against a person nominated, 
the committee may, in its discretion, notify such nominee thereof, but 
the name of the person making such charges shall not be disclosed. The 
fact that a nomination has been made, or that it has been confirmed or 
rejected, shall not be regarded as a secret. 


NOTE (A) TO CHAPTER XVI 

PRIVATE BILLS 

In England a broad distinction is drawn between public bills and local 
or private bills. The former class includes measures of general applica¬ 
tion, altering or adding to the general law of the land. The latter includes 




PRIVATE BILLS 


689 


measures intended to apply only to some particular place or person, as, for 
instance, bills incorporating railway or gas or water companies or extend¬ 
ing the powers of such bodies, bills authorizing municipalities to execute 
public improvements, as well as estate bills, bills relating to charitable 
foundations, and (for Ireland) divorce bills. 1 2 Bills of the local and per¬ 
sonal class have for many years past been treated differently from public 
bills. They are brought in, as it is expressed, on petition, and not on 
motion. Notice is required to be given of such a bill by advertisement 
nearly three months before the usual date of the meeting of Parliament 
and copies must be deposited some weeks before the opening of the ses¬ 
sion. The second reading is usually granted as a matter of course; and 
after second reading, instead of being, like a public bill, considered in 
committee of the whole House, it goes (if opposed) to a private bill com¬ 
mittee consisting (usually) of four members, who take evidence regard¬ 
ing it from the promoters and opponents, and hear counsel argue for and 
against its preamble and its clauses. In fact, the proceedings on private 
bills are to some extent of a judicial nature, although of course the com¬ 
mittee must have regard to considerations of policy. 

Pecuniary claims against the Government are in England not raised by 
way of private bill. They are presented in the courts by a proceeding 
called a petition of right, the Crown allowing itself to be sued by one of 
its subjects. 

In America no such difference of treatment as the above exists between 
public and private bills ; all are dealt with in substantially the same way 
by the usual legislative methods. A bill of a purely local or personal 
nature gets its second reading as a matter of course, like a bill of general 
application, is similarly referred to the appropriate committee (which 
may hear evidence regarding it, but does not hear counsel), is considered 
and if necessary amended by the committee, is, if time permits, reported 
back to the House, and there takes its chance among the jostling crowd of 
other bills, Fridays, however, being specially set apart for the considera¬ 
tion of private business. There is a calendar of private bills, and those 
which get a place early upon it have a chance of passing. A great many 
are unopposed, and can be hurried through by “ unanimous consent.” 

Private bills are in Congress even more multifarious in their contents, 
as well as incomparably more numerous, than in England, although they 
do not include the vast mass of bills for the creation or regulation of vari¬ 
ous public undertakings within a particular State, since these would fall 
within the province of the State legislature. They include three classes 
practically u nkn own in England, pension bills, which propose to grant a 
pension to some person (usually a soldier or his widow), bills for satisfy¬ 
ing some claim of an individual against the Federal Government, — these, 
however, have been largely reduced by the creation of the Court of Claims, 
— and bills for dispensing in particular cases with a variety of administra¬ 
tive statutes. Matters which in England would be naturally left to be 

1 The official distinction in the yearly editions of the Statutes is into Public 
General Acts, Public Acts of a local character (which include Provisional Order 
Acts and Local Acts), and Private Acts. But in ordinary speech, those meas¬ 
ures which are brought in at the instance of particular persons for a local pur¬ 
pose are called private. 

2 Y 



690 


APPENDIX 


dealt with at the discretion of the executive are thus assumed by the leg¬ 
islature, which is (for reasons that will appear in later chapters) more anx¬ 
ious to narrow the sphere of the executive than are the ruling legislatures 
of European countries. I subjoin some instances showing how wide is 
the range of congressional interference. 

In the House of Representatives 

Read twice, referred to the Committee on Invalid Pensions, and 
ordered to be printed. 

Mr. Murch introduced the following bill: — 

A Bill 

For the relief of James E. Gott. 

Be it enacted, 

1 By the Senate and 'House of Representatives of the 

2 United States of America in Congress Assembled. 

3 That the Secretary of the Interior be, and he is hereby, 

4 Authorized and directed to increase the pension of James E. 

5 Gott, late a member of Company A, Fourteenth Regiment 

6 Maine Volunteers, to twenty-four dollars per month. 


Read twice, referred to the Committee on War Claims, and ordered to 
be printed. 


A Bill 


For the relief of the heirs of George W. Hayes. 

Be it enacted , 

That the proper accounting officer of the Treasury be, and he is hereby, 
directed to pay to the heirs of George W. Hayes, of North Carolina, the 
sum of four hundred and fifty dollars, for three mules furnished the 
United States Army in eighteen hundred and sixty-four, for which they 
hold proper vouchers. 

Read twice, and referred to the Committee on Naval Affairs. 


A Bill 

For the relief of Thomas G. Corbin. 

Be it enacted, etc. 

That the President of the United States be, and is hereby, authorized 
to restore Thomas G. Corbin now a captain on the retired list of the 
Navy, to the active list, and to take rank next after Commodore J. W. 
A. Nicholson, with restitution, from December twelfth, eighteen hundred 
and seventy-three, of the difference of pay between that of a commodore 
on the active list, on “ waiting orders ” pay, and that of a captain retired 
on half-pay, to be paid out of any money in the Treasury not otherwise 
appropriated. 

Read twice, referred to the Committee on Ways and Means, and 
ordered to be printed. 






THE LOBBY 


691 


Mr. Robinson introduced the following joint resolution: — 

Joint Resolution 

Authorizing the remission or refunding of duty on a painted-glass window 
from London, England, for All Souls’ Church, in Washington, Dis¬ 
trict of Columbia. 


Resolved by the Senate and House of Representatives of the United States 
of America in Congress Assembled, 

That the Secretary of the Treasury be, and he is hereby, authorized 
and directed to remit or refund, as the case may be, the duties paid or 
accruing upon a painted-glass window from London, England, for All 
Souls’ Church, in Washington, District of Columbia, imported, or to be 
imported into Baltimore, Maryland, or other port. 


NOTE (B) TO CHAPTER XVI 

THE LOBBY 

“ The Lobby ” is the name given in America to persons, not being 
members of a legislature, who undertake to influence its members, and 
thereby to secure the passing of bills. The term includes both those who, 
since they hang about the chamber, and make a regular profession of 
working upon members, are called “ lobbyists,” and those persons who 
on any particular occasion may come up to advocate, by argument or 
solicitation, any particular measure in which they happen to be interested. 
The name, therefore, does not necessarily impute any improper motive or 
conduct, though it is commonly used in what Bentham calls a dyslogis¬ 
tic sense. 

The causes which have produced lobbying are easily explained. Every 
legislative body has wide powers of affecting the interests and fortunes of 
private individuals, both for good and for evil. It entertains in every 
session some public bills, and of course many more private (i.e. local or 
personal) bills, which individuals are interested in supporting or resist¬ 
ing. Such, for instance, are public bills imposing customs duties or regu¬ 
lating the manufacture or sale of particular articles ( e.g . intoxicants, ex¬ 
plosives), and private bills establishing railroad or other companies,. or 
granting public franchises/SiHJn State legislatures) altering the areas of 
local government, or varying the taxing or borrowing powers of munici¬ 
palities. When such bills are before a legislature, the promoters and the 
opponents naturally seek to represent their respective views, and to en¬ 
force them upon the members with whom the decision rests. So far there 
is nothing wrong, for advocacy of this kind is needed in order to bring 
the facts fairly before the legislature. 

Now both in America and in England it has been found necessary, 






692 


APPENDIX 


owing to the multitude of bills and the difficulty of discussing them in a 
large body, to refer private bills to committees for investigation; and the 
legislature has in both countries formed the habit of accepting generally, 
though not invariably, the decisions of a committee upon the bills it has 
dealt with. America has, however, gone farther than England, for Con¬ 
gress refers all public bills as well as private bills to committees. And 
whereas in England private bills are dealt with by a semi-judicial proce¬ 
dure, the promoters and opponents appearing by professional agents and 
barristers, in America no such procedure has been created, either in Con¬ 
gress or in the State legislatures, and private bills are handled much like 
public ones. Moreover, the range of private bills is wider in America 
than in England, in respect that they are used to obtain the satisfaction 
of claims by private persons against the Government, (although there 
exists a Federal Court of Claims, and in some States the State permits 
itself to be sued) whereas in England such claims would either be brought 
before a law-court in the form of a Petition of Right, or, though this rarely 
happens, be urged upon the executive by a motion made in Parliament. 

We see, therefore, that in the United States — 

All business goes before committees, not only private bills but public 
bills, often involving great pecuniary interests. 

To give a bill a fair chance of passing, the committee must be induced 
to report in favour of it. 

The committees have no quasi-judicial rules of procedure, but inquire 
into and amend bills in their uncontrolled discretion, upon such evidence 
or other statements as they choose to admit or use. 

Bills are advocated before committees by persons not belonging to any 
recognized and legally regulated body. 

The committees, both in the State legislatures and in the Federal 
House of Representatives, are largely composed of new men, unused 
to the exercise of the powers entrusted to them, though in the House of 
Representatives the chairman is a person of some experience. 

It results from the foregoing state of facts that the efforts of the pro¬ 
moters and opponents of a bill will be concentrated upon the committee 
to which the bill has been referred ; and t hajf when the interests affected 
are large it will be worth while to employ every'possible engine of influence. 
Such influence can be better applied by those who have skill and a tact ma¬ 
tured by experience ; for it is no easy matter to know how to handle a com¬ 
mittee collectively and its members individually. Accordingly, a class of 
persons springs up whose profession it is to influence committees for or 
against bills. There is nothing necessarily illegitimate in doing so/ As 
Mr. Spofford remarks : — ' 

“ What is known as lobbying by no means implies in all cases the use 
of money to affect legislation. This corruption is frequently wholly 
absent in cases where the lobby is most industrious, numerous, persistent, 
and successful. A measure which it is desired to pass into law, for the 
benefit of certain interests represented, may be urged upon members of 
the legislative body in every form of influence except the pecuniary one. 
By casual interviews, by informal conversation, by formal presentation 
of facts and arguments, by printed appeals in pamphlet form, by news¬ 
paper communications and leading articles, by personal introductions 



THE LOBBY 


693 


from or through men of supposed influence, by dinners, receptions, and 
other entertainments, by the arts of social life and the charms of femi¬ 
nine attraction, the public man is beset to look favourably upon the 
measure which interested parties seek to have enacted. It continually 
happens that new measures or modifications of old ones are agitated in 
which vast pecuniary interests are involved. The power of the law, 
which when faithfully administered is supreme, may make or unmake 
the fortunes of innumerable corporations, business firms, or individuals. 
Changes in the tariff duties, in the internal revenue taxes, in the bank¬ 
ing system, in the mining statutes, in the land laws, in the extension of 
patents, in the increase of pensions, in the regulation of mail contracts, in 
the currency of the country, or proposed appropriations for steamship 
subsidies, for railway legislation, for war damages, and for experiments 
in multitudes of other fields of legislation equally or more important, 
come before Congress. It is inevitable that each class of interests 
liable to be affected should seek its own advantage in the result. When 
this is done legitimately, by presentation and proof of facts, by testi¬ 
mony, by arguments, by printed or personal appeals to the reason and 
sense of justice of members, there can be no objection to it.” 1 

Just as a plaintiff in a lawsuit may properly employ an attorney and 
barrister, so a promoter may properly employ a lobbyist. But there is 
plainly a risk of abuse. In legal proceedings, the judge and jury are 
bound to take nothing into account except the law and the facts proved 
in evidence. It would be an obvious breach of duty should a judge 
decide in favour of a plaintiff because he had dined with or been impor¬ 
tuned by him (as in the parable), or received £50 from him. The judge 
is surrounded by the safeguards, not only of habit but of opinion, which 
would condemn his conduct and cut short his career were he to yield to 
any private motive. The attorney and barrister are each of them also 
members of a recognized profession, and would forfeit its privileges were 
they to be detected in the attempt to employ underhand influence. No 
such safeguards surround either the member of a committee or the lob¬ 
byist. The former usually comes out of obscurity, and returns to it; 
the latter does not belong to any disciplined profession. Moreover, the 
questions which the committee has to decide are not questions of law, nor 
always questions of fact, but largely questions of policy, on which rea¬ 
sonable men need not agree, and as to which it is often impossible to say 
that there is a palpably right view or wrong view, because the determin¬ 
ing considerations will be estimated differently by different minds. 

These dangers in the system of private bill legislation made themselves 
so manifest in England, especially during the great era of railway con¬ 
struction between 1835 and 1850, as to have led to the adoption of the 
quasi-judicial procedure described in the Note on Private Bills, and to the 
erection of parliamentary agents into a regularly constituted profession, 
bound by professional rules. Public opinion has fortunately estab¬ 
lished the doctrine that each member of a private bill committee is to 
be considered as a quasi-judicial person, whose vote neither a brother 

i Mr. A. R. Spofford (formerly Librarian of Congress) in American Cyclo - 
ycedia of Political Science, Article “Lobby.” 



694 


APPENDIX 


member nor any outsider may attempt to influence, but who is bound 
to decide, as far as he can, in a judicial spirit on the footing of the evi¬ 
dence tendered. Of course practice is not quite up to the level of theory 
in Parliament any more than elsewhere ; still there is little solicitation 
to members of committees, and a complete absence of even the suspicion 
of corruption. 

“ In the United States,” says an experienced American publicist, 
whose opinion I have inquired, “though lobbying is perfectly legitimate 
in theory, yet the secrecy and want of personal responsibility, the con¬ 
fusion and want of system in the committees, make it rapidly degenerate 
into a process of intrigue, and fall into the hands of the worst men. It is 
so disagreeable and humiliating that all men shrink from it, unless those 
who are stimulated by direct personal interest; and these soon throw 
away all scruples. The most dangerous men are ex-members, who know 
how things are to be managed.” 

That this unfavourable view is the prevailing one, appears not merely 
from what one hears in society or reads in the newspapers, though in 
America one must discount a great deal of what rumour asserts regard¬ 
ing illicit influence, but from the constitutions and statutes of some States, 
which endeavour to repress it. 

What has been said above applies equally to Congress and to the 
State legislatures, and to some extent also to the municipal councils of 
the great cities. All legislative bodies which control important pecuni¬ 
ary interests are as sure to have a lobby as an army to have its camp- 
followers. Where the body is, there will the vultures be gathered 
together. Great and wealthy States, like New York and Pennsylvania, 
support the largest and most active lobbies. It must, however, be re¬ 
membered that although no man of good position would like to be called a 
lobbyist, still such men are often obliged to do the work of lobbying — 
i.e. they must dance attendance on a committee, and endeavour to influ¬ 
ence its members for the sake of getting their measure through. They 
may have to do this in the interests of the good government of a city, or 
the reform of a charity, no less than for some private end. 

The permanent professional staff of lobbyists at Washington is of 
course from time to time recruited by persons interested in some particu¬ 
lar enterprise, who combine with one, two, or more professionals in trying 
to push it through. Thus there are at Washington, says Mr. Spofford, 
“ pension lobbyists, tariff lobbyists, steamship subsidy lobbyists, railway 
lobbyists, Indian ring lobbyists, patent lobbyists, river and harbour 
lobbyists, mining lobbyists, bank lobbyists, mail-contract lobbyists, war 
damages lobbyists, back-pay and bounty lobbyists, Isthmus canal lobby¬ 
ists, public building lobbyists, State claims lobbyists, cotton-tax lobby¬ 
ists, and French spoliations lobbyists. Of the office-seeking lobbyists at 
Washington it may be said that their name is legion. There are even 
artist lobbyists, bent upon wheedling Congress into buying bad paintings 
and worse sculptures ; and too frequently with success. At times in cur 
history there has been a British lobby, with the most genteel accompani¬ 
ments, devoted to watching legislation affecting the great importing and 
shipping interests.” 

A committee whose action can affect the tariff is of course surrounded 



THE LOBBY 


695 


by a strong lobby. 1 I remember to have heard an anecdote of a quinine 
manufacturer, who had kept a lawyer as his agent to “ take care of ” 
a committee during a whole session, and prevent them from touching the 
duty on that drug. On the last day of sitting the agent went home, 
thinking the danger past. As soon as he had gone, the committee sud¬ 
denly recommended an alteration of the duty, on the impulse of some 
one who had been watching all the time for his opportunity. 

Women were at one time among the most active and successful lobby¬ 
ists at Washington. Very few are now seen. 

Efforts have been made to check the practice of lobbying, both in 
Congress and in State legislatures. Statutes have been passed severely 
punishing any person who offers any money or value to any member 
with a view to influence his vote. 2 It has been repeatedly held by the 
courts that “ contracts which have for their object to influence legislation 
in any other manner than by such open and public presentation of facts, 
arguments, and appeals to reason, such as are recognized as proper and 
legitimate with all public bodies, must be held void.” 3 It has also been 
suggested that a regular body of attorneys, authorized to act as agents 
before committees of Congress, should be created. A bill for this pur¬ 
pose was laid before the Senate in 1875. 

1 The phrase one often hears, “There was a strong lobby” ( i.e . for or against 
such and such a bill), denotes that the interests and influences represented were 
numerous and powerful. 

2 As to Congress, see § 5450 of Revised Statutes of the United States. The 
provisions of State Statutes are too numerous to mention. See p. 462. Massa¬ 
chusetts endeavoured by Statute to regulate her State lobby, by requiring 
every person promoting a bill to state whom he has employed for the purpose 
and what he has paid. New York, Missouri, and other States have also passed 
laws designed to regulate and check lobbying. Some good has been done, but 
the evils do not seem to have been extirpated. 

3 Cooley, Constit. Limit., p. 166. He refers to the observations of Justice 
Chapman, in Frost v. Belmont, 6 Allen, 152: — 

“Though Committees properly dispense with many of the rules which reg¬ 
ulate hearings before judicial tribunals, yet common fairness requires that 
neither party shall be permitted to have secret consultations and exercise 
secret influences that are kept from the knowledge of the other party. The 
business of ‘lobby members’ is not to go fairly and openly before the commit¬ 
tees and present statements, proofs, and arguments, that the other side has an 
opportunity to meet and refute if they are wrong, but to go secretly to the 
members and ply them with statements and arguments that the other side 
cannot openly meet, however erroneous they may be, and to bring illegitimate 
influences to bear upon them. If the ‘lobby member’ is selected because of 
his political or personal influence, it aggravates the wrong. If his business is 
to unite various interests by means of projects that are called ‘log-rolling,’ it 
is still worse. The practice of procuring members of the legislature to act 
under the influence of what they have eaten and drunk at houses of entertain¬ 
ment tends to render those who yield to such influences wholly unfit to act in 
such cases.” 




696 


APPENDIX 


NOTE (A) TO CHAPTER XXX 

CONSTITUTION OF THE CONFEDERATE STATES, 1861-1865 

The Constitution adopted 11th March, 1861, by the Slave States which 
seceded from the Union and formed the short-lived Southern Confed¬ 
eracy, was a reproduction of the Federal Constitution of 1788-89, with 
certain variations interesting because they show the points in which the 
States’ Rights party thought the Federal Constitution defective as inade¬ 
quately safeguarding the rights of the several States, and because they 
embody certain other changes which have often been advocated as likely 
to improve the working of that instrument. 

The most important of these variations are the following: — 

Art. i. § 2. A provision is inserted permitting the impeachment of a Federal 
officer acting within the limits of any State by a vote of two-thirds of the legis¬ 
lature thereof. 

Art. i. § 6. There is added: “Congress may by law grant to the principal 
officer in each of the executive departments, a seat upon the floor of either 
House, with the privilege of discussing any measure appertaining to his de¬ 
partment.” 

Art. i. § 7. The President is permitted to veto any particular item or items 
in an appropriation bill. 

Art. i. § 8. The imposition of protective duties and the granting of bounties 
on industry are forbidden, and the granting of money for internal improve¬ 
ments is strictly limited. 

Art. i. § 9. Congress is forbidden to appropriate money from the Treasury, 
except by a vote of two-thirds of both Houses, unless it be asked by the head 
of a department and submitted by the President, or be for the payment of its 
own expenses, or of claims against the Confederacy declared by a judicial tri¬ 
bunal to be just. 

Art. ii. § 1. The President and Vice-President are to be elected for six years, 
and the President is not to be re-eligible. 

Art. ii. § 2. The President is given power to remove the highest officials at 
his pleasure, and others for good cause, reporting the removals to the Senate. 

Art. v. The process for amending the Constitution is to be by a Convention 
of all the States, followed by the ratification of two-thirds of the States. 

Of these changes, the third and fifth were obvious improvements ; and 
much may be said in favour of the second, fourth, seventh, and eighth. 
The second was a very slight approximation towards the Cabinet system 
of England. 1 

1 A singular combination of the Presidential with the Cabinet system may 
be found in the Constitution of the Hawaiian kingdom, promulgated 7th 
July, 1887, which lasted till the islands were annexed to the United States in 
1898. Framed under the influence of American traditions, it kept the Cabinet, 
which consisted of four ministers, out of the legislature, but having an irre¬ 
sponsible hereditary monarch, it was obliged to give the legislature the power 
of dismissing them by a vote of want of confidence. The legislature consisted 
of two sets of elective members, Nobles (unpaid), and Representatives (paid), 
who sat and voted together. Two successive legislatures could alter the Con¬ 
stitution by certain prescribed majorities: the Constitution was therefore a 
rigid one. 



THE FEDERAL CONSTITUTION OF CANADA 697 


I omit the important changes relating to slavery, which was fully pro¬ 
tected, because these have only a historical interest. 

The working of the Constitution of the Confederate States cannot be 
fairly judged, because it was conducted under the exigencies of a war, 
which necessarily gave it a despotic turn. The executive practically got 
its way. Congress usually sat in secret and “ did little beyond register 
laws prepared by the executive, and debate resolutions for the vigorous 
conduct of the war. Outside of the ordinary powers conferred by the 
legislature, the war powers openly or practically exercised by the execu¬ 
tive were more sweeping and general than those assumed by President 
Lincoln.” — (Alexander Johnston in American Cyclopedia of Political 
Science, Article “ Confederate States.”) 


NOTE (B) TO CHAPTER XXX 

THE FEDERAL CONSTITUTION OF CANADA 

The Federal Constitution of the Dominion of Canada is contained in 
the British North America Act 1867, a statute of the British Parliament 
(30 Yict. c. 3). 1 I note a few of the many points in which it deserves to 
be compared with that of the United States. 

The Federal or Dominion Government is conducted on the so-called 
“ Cabinet system ” of England, i.e. the Ministry sit in Parliament, and 
hold office at the pleasure of the House of Commons. The Governor- 
General is in the position of an irresponsible and permanent executive 
similar to that of the Crown in Great Britain, acting on the advice of 
responsible ministers. He can dissolve Parliament. The Upper House or 
Senate is composed of 87 persons, nominated for life by the Governor- 
General, i.e. the Ministry. The House of Commons has at present 221 
members, who are elected for five years. Both senators and members 
receive salaries. The Senate has little power or influence. The Gov¬ 
ernor-General has a veto, but rarely exercises it, and may reserve a bill 
for the Queen’s pleasure. The judges, not only of the Federal or Do¬ 
minion Courts, but also of the Provinces, are appointed by the Crown, 
i.e. by the Dominion Ministry, and hold for good behaviour. 

Each of the Provinces, at present nine in number, has a legislature of 
its own, which, however, consists in Ontario, British Columbia, Mani¬ 
toba, and New Brunswick of one House only, and a Lieutenant-Governor, 
appointed by the Dominion Government, with a right of veto on the acts 
of the legislature, which he seldom exercises. Members of the Dominion 
Parliament cannot sit in a Provincial legislature. 

The Governor-General has a right of disallowing, on the advice of his 
ministers, acts of a Provincial legislature, and sometimes (though rarely) 
exerts it, especially when a legislature is deemed to have exceeded its 
constitutional competence. 

1 See also 34 & 35 Viet. c. 28, and 49 & 50 Viet. c. 35. 





698 


APPENDIX 


In each of the Provinces there is a responsible Ministry, working on 
the Cabinet system of England, the Lieutenant-Governor representing 
the Crown and acting as a sort of constitutional sovereign. 

The distribution of matters within the competence of the Dominion 
Parliament and of the Provincial legislatures, respectively, bears a general 
resemblance to that existing in the United States; but there is this 
remarkable distinction, that whereas in the United States, Congress has 
only the powers actually granted to it, the State legislatures retaining al 
such powers as have not been taken from them, the Dominion Parliament 
has a general power of legislation, restricted only by the grant of certain 
specific and exclusive powers to the Provincial legislatures (§§ £-1-95). 
Criminal law is reserved for the Dominion Parliament; and no province 
has the right to maintain a military force. Questions as to the constitu¬ 
tionality of a statute, whether of the Dominion Parliament or of a Provin¬ 
cial legislature, come before the courts in the ordinary way, and if ap¬ 
pealed, before the Judicial Committee of the Privy Council in England. 

The Constitution of the Dominion was never submitted to popular 
vote, and can be altered only by the British Parliament, except as regards 
certain points left to its own legislature. It was drafted by a sort of 
small convention in Canada, and enacted en bloc by the British Parlia¬ 
ment. There exists no power of amending the Provinicial constitutions 
by popular vote similar to that which the people of the several States 
exercise in the United States. 

As to the Constitution of the Commonwealth of Australia, drafted in 
Australia and enacted by the British Parliament in 1900, the reader 
may refer to the author’s Studies in History and Jurisprudence, where it 
is described and commented on. The Constitution of the South African 
Union, enacted in 1909 by the British Parliament at the request of a 
Convention held in South Africa, is more unitary in its character than 
are those of Canada and Australia. 


NOTE TO CHAPTER XXXIII 

THE DARTMOUTH COLLEGE CASE 

The famous case of Dartmouth College v. Woodward (4 Wheat. 518), 
decided in 1818, has been so often brought up in European discussions, 
that it seems proper to give a short account of it, taken from an authori¬ 
tative source, an address by the late Mr. Justice Miller (then senior justice, 
and one of the most eminent members, of the Supreme Court), delivered 
before the University of Michigan, June, 1887. 

“ It may well be doubted whether any decision ever delivered by any 
court has had such a pervading operation and influence in controlling legis¬ 
lation as this. It is founded upon the clause of the Constitution (Art. i. 
§ 10) which declares that no State shall make any law impairing the obli¬ 
gation of contracts. 

Dartmouth College existed as a corporation under a charter granted 




THE DARTMOUTH COLLEGE CASE 


699 


by the British crown to its trustees in New Hampshire, in the year 1769. 
This charter conferred upon them the entire governing power of the col¬ 
lege, and among other powers that of filling up all vacancies occurring in 
their own body, and of removing and appointing tutors. It also declared 
that the number of trustees should for ever consist of twelve and no more. 

“ After the Revolution, the legislature of New Hampshire passed a law 
to amend the charter, to improve and enlarge the corporation. It in¬ 
creased the number of trustees to twenty-one, gave the appointment of 
the additional members to the executive of the State, and created a board 
of overseers to consist of twenty-five persons, of whom twenty-one were, 
also to be appointed by the executive of New Hampshire. These over¬ 
seers had power to inspect and control the most important acts of the 
trustees. 

“ The Supreme Court, reversing the decision of the Superior Court of 
New Hampshire, held that the original charter constituted a contract 
between the crown, in whom the power was then vested and the trustees 
of the college, which was impaired by the act of the legislature above 
referred to. The opinion, to which there was but one dissent, establishes 
the doctrine that the act of a government, whether it be by a charter of 
the legislature or of the crown, which creates a corporation, is a contract 
between the state and the corporation, and that all the essential franchises, 
powers, and benefits conferred upon the corporation by the charter be¬ 
come, when accepted by it, contracts within the meaning of the clause of 
the Constitution referred to. 

“ The opinion has been of late years much criticised, as including with 
the class of contracts whose foundation is in the legislative action of the 
States, many which were not properly intended to be so included by the 
framers of the Constitution, and it is undoubtedly true that the Supreme 
court itself has been compelled of late years to insist in this class of cases 
upon the existence of an actual contract by the State with the corpora¬ 
tion, when relief is sought against subsequent legislation. 

“ The main feature of the case, namely that a State can make a con¬ 
tract by legislation, as well as in any other way, and that in no such case 
shall a subsequent act of the legislature interpose any effectual barrier to 
its enforcement, where it is enforceable in the ordinary courts of justice, 
has remained. The result of this principle has been to make void in¬ 
numerable acts of State legislatures, intended in times of disastrous finan¬ 
cial depression and suffering to protect the people from the hardships of a 
rigid and prompt enforcement of the law in regard to their contracts, and 
to prevent the States from repealing, abrogating, or avoiding by legisla¬ 
tion contracts fairly entered into with other parties. 

“ This decision has stood from the day it was made to the present hour 
as a great bulwark against popular effort through State legislation to 
evade the payment of just debts, the performance of obligatory contracts, 
and the general repudiation of the rights of creditors.” 

As here intimated, the broad doctrine laid down in this case has been 
of late years considerably qualified and restricted. It has also become 
the practice for States making contracts by grants to which the principle 
of this decision could apply, to reserve power to vary or annul them, so 
as to leave the hands of the State free. 



700 


APPENDIX 


ARTICLES OF CONFEDERATION, 1781-1788 

Articles of Confederation and Perpetual Union between the States of New 
Hampshire , Massachusetts Bay, Rhode Island and Providence Plan¬ 
tations , Connecticut, New York, New Jersey, Pennsylvania, Dela¬ 
ware, Maryland, Virginia, North Carolina, South Carolina , and 
Georgia. 

Article I. The style of this confederacy shall be, “ The United States 
of America.” 

Art. II. Each State retains its sovereignty, freedom, and indepen¬ 
dence, and every power, jurisdiction, and right, which is not by this con¬ 
federation expressly delegated to the United States in Congress assembled. 

Art. III. The said States hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security of 
their liberties, and their mutual and general welfare, binding themselves 
to assist each other against all force offered to, or attacks made upon 
them, or any of them, on account of religion, sovereignty, trade, or any 
other pretence whatever. 

Art. IV. The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States ; and the people of each State shall have 
free ingress and regress to and from any other State, and shall enjoy therein 
all the privileges of trade and commerce, subject to the same duties, 
impositions, and restrictions, as the inhabitants thereof respectively; 
provided that such restrictions shall not extend so far as to prevent the 
removal of property imported into any State, to any other State of which 
the owner is an inhabitant; provided, also, that no imposition, duties, or 
restriction, shall be laid by any State on the property of the United States, 
or either of them. 

If any person guilty of, or charged with, treason, felony, or other high 
misdemeanour in any State, shall flee from justice, and be found in any 
of the United States, he shall, upon demand of the governor or executive 
power of the State from which he fled, be delivered up, and removed to 
the State having jurisdiction of his offence. 

Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 

Art. V. For the more convenient management of the general inter¬ 
ests of the United States, delegates shall be annually appointed in such 
manner as the legislature of each State shall direct, to meet in Congress 
on the first Monday in November, in every year, with a power reserved 
to each State to recall its delegates, or any of them, at any time within 
the year, and to send others in their stead for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by 
more than seven members; and no person shall be capable of being a 
delegate for more than three years, in any term of six years; nor shall 
any person, being a delegate, be capable of holding any office under the 



ARTICLES OF CONFEDERATION, 1781-1788 


701 


United States, for which he, or another for his benefit, receives any salary, 
fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of the 
States, and while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assembled, 
each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress; and the members of 
Congress shall be protected in their persons from arrests and imprison¬ 
ments during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Art. VI. No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, with 
any king, prince, or state; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept of any 
present, emolument, office, or title of any kind whatever, from any king, 
prince, or foreign state; nor shall the United States, in Congress as¬ 
sembled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or 
alliance whatever between them, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No States shall lay any imposts or duties which may interfere with 
any stipulations in treaties entered into by the United States, in Con¬ 
gress assembled, with any king, prince, or state, in pursuance of any 
treaties already proposed by Congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only as shall be deemed necessary by the United 
States, in Congress assembled, for the defence of such State or its trade ; 
nor shall any body of forces be kept up by any State, in time of peace, 
except such number only as, in the judgment of the United States, in 
Congress assembled, shall be deemed requisite to garrison the forts nec¬ 
essary for the defence of such State ; but every State shall always keep 
up a well-regulated and disciplined militia, sufficiently armed and ac¬ 
coutred, and shall provide and constantly have ready for use, in public 
stores, a due number of field-pieces and tents, and a proper quantity of 
arms, ammunition, and camp equipage. 

No State shall engage in any war without the consent of the Umted 
States, in Congress assembled, unless such State be actually invaded by 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such State, and the danger 
is so imminent as not to admit of a delay till the United States, in Con¬ 
gress assembled, can be consulted; nor shall any State grant commis¬ 
sions to any ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the United States, in Congress 
assembled, and then only against the kingdom or state, and the subjects 
thereof against which war has been so declared, and under such regula¬ 
tions as shah be established by the United States, in Congress assembled, 
unless such State be invested by pirates, in which case vessels of war 



702 


APPENDIX 


may be fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States, in Congress assembled, shall deter¬ 
mine otherwise. 

Art. VII. When land forces are raised by any State for the common 
defence, all officers of or under the rank of colonel shall be appointed 
by the legislature of each State respectively by whom such forces shall be 
raised, or in such manner as such State shall direct, and all vacancies 
shall be filled up by the State which first made the appointment. 

Art. VIII. All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare, and allowed by the 
United States, in Congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several States, in proportion to 
the value of all land within each State, granted to, or surveyed for, any 
person, as such land and the buildings and improvements thereon shall 
be estimated according to such mode as the United States, in Congress 
assembled, shall, from time to time, direct and appoint. The taxes for 
paying that proportion shall be laid and levied by the authority and 
direction of the legislatures of the several States, within the time agreed 
upon by the United States, in Congress assembled. 

Art. IX. The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth Article; of sending and 
receiving ambassadors; entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative power 
of the respective States shall be restrained from imposing such imposts 
and duties on foreigners, as their own people are subjected to, or from 
prohibiting the exportation or importation of any species of goods or 
commodities whatsoever; of establishing rules for deciding, in all cases, 
what captures on land or water shall be legal, and in what manner prizes 
taken by land or naval forces in the service of the United States shall be 
divided or appropriated; of granting letters of marque and reprisal in 
times of peace; appointing courts for the trial of piracies and felonies 
committed on the high seas; and establishing courts for receiving and 
determining finally appeals in all cases of capture; provided that no 
member of Congress shall be appointed as judge of any of the said 
courts. 

The United States, in Congress assembled, shall also be the last resort 
on appeal, in all disputes and differences now subsisting, or that hereafter 
may arise, between two or more States concerning boundary, jurisdiction, 
or any other cause whatever ; which authority shall always be exercised in 
the manner following: Whenever the legislative or executive authority, 
or lawful agent of any State in controversy with another, shall present a 
petition to Congress, stating the matter in question, and praying for a 
hearing, notice thereof shall be given by order of Congress to the legislative 
or executive authority of the other State in controversy, and a day as¬ 
signed for the appearance of the parties by their lawful agents, who shall 
then be directed to appoint, by joint consent, commissioners or judges to 
constitute a court for hearing and determining the matter in question; 
but if they cannot agree, Congress shall name three persons out of each 
of the United States, and from the fist of such persons each party shall 



ARTICLES OP CONFEDERATION, 1781-1788 


703 


alternately strike out one, the petitioners beginning, until the number 
shall be reduced to thirteen; and from that number not less than seven 
nor more than nine names, as Congress shall direct, shall, in the presence 
of Congress, be drawn out by lot; and the persons whose names shall be 
so drawn, or any five of them, shall be commissioners or judges, to hear 
and finally determine the controversy, so always as a major part of the 
judges who shall hear the cause shall agree in the determination; and if 
either party shall neglect to attend at the day appointed, without show¬ 
ing reasons which Congress shall judge sufficient, or being present, shall 
refuse to strike, the Congress shall proceed to nominate three persons out 
of each State, and the secretary of Congress shall strike in behalf of such 
party absent or refusing; and the judgment and sentence of the court, to 
be appointed in the manner before prescribed, shall be final and conclu¬ 
sive ; and if any of the parties shall refuse to submit to the authority of 
such court, or to appear or defend their claim or cause, the court shall 
nevertheless proceed to pronounce sentence or judgment, which shall in 
like manner be final and decisive; the judgment or sentence and other 
proceedings being in either case transmitted to Congress, and lodged 
among the acts of Congress for the security of the parties concerned ; pro¬ 
vided, that every commissioner, before he sits in judgment, shall take 
an oath, to be administered by one of the judges of the Superior court 
of the State where the cause shall be tried, “well and truly to hear and 
determine the matter in question, according to the best of his judgment, 
without favour, affection, or hope of reward.” Provided, also, that no 
State shall be deprived of territory for the benefit of the United States. 

All controversies concerning the private right of soil claimed under dif¬ 
ferent grants of two or more States, whose jurisdictions, as they may 
respect such lands, and the States which passed such grants, are adjusted, 
the said grants or either of them being at the same time claimed to have 
originated antecedent to such settlement of jurisdiction, shall, on the 
petition of either party to the Congress of the United States, be finally 
determined, as near as may be, in the same manner as is before prescribed 
for deciding disputes respecting territorial jurisdiction between different 
States. 

The United States, in Congress assembled, shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authority, or by that of the respective States; fixing the 
standard of weights and measures throughout the United States; regulat¬ 
ing the trade and managing all affairs with the Indians not members of 
any of the States ; provided that the legislative right of any State, within 
its own limits, be not infringed or violated; establishing and regulating 
post-offices from one State to another throughout all the United States, 
and exacting such postage on the papers passing through the same as may 
be required to defray the expenses of the said office; appointing all 
officers of the land forces in the service of the United States, excepting 
regimental officers; appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United States, 
making rules for the government and regulation of the said land and 
naval forces, and directing their operations. 

The United States, in Congress assembled, shall have authority to ap< 



704 


APPENDIX 


point a committee, to sit in the recess of Congress, to be denominated “A 
Committee of the States,” and to consist of one delegate from each State; 
and to appoint such other committees and civil officers as may be necessary 
for managing the general affairs of the United States under their direction ; 
to appoint one of their number to preside, provided that no person be al¬ 
lowed to serve in the office of president more than one year in any term of 
three years; to ascertain the necessary sums of money to be raised for 
the service of the United States, and to appropriate and apply the same 
for defraying the public expenses; to borrow money or emit bills on the 
credit of the United States, transmitting every half year to the respective 
States an account of the sums of money so borrowed or emitted ; to build 
and equip a navy; to agree upon the number of land forces, and to make 
requisitions from each State for its quota, in proportion to the number of 
white inhabitants in such State, which requisition shall be binding; and 
thereupon the legislature of each State shall appoint the regimental offi¬ 
cers, raise the men, and clothe, arm, and equip them in a soldier-like man¬ 
ner at the expense of the United States; and the officers and men so 
clothed, armed, and equipped shall march to the place appointed, and 
within the time agreed on by the United States, in Congress assembled; 
but if the United States, in Congress assembled, shall, on consideration of 
circumstances, judge proper that any State should not raise men, or should 
raise a smaller number than its quota, and that any other State should 
raise a greater number of men than the quota thereof, such extra number 
shall be raised, officered, clothed, armed, and equipped in the same man¬ 
ner as the quota of such State, unless the legislature of such State shall 
judge that such extra number cannot be safely spared out of the same, in 
which case they shall raise, officer, clothe, arm, and equip as many of such 
extra number as they judge can be safely spared, and the officers and men 
so clothed, armed, and equipped shall march to the place appointed, and 
within the time agreed on by the United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defence and welfare 
of the United States, or any of them, nor emit bills, nor borrow money 
on the credit of the United States, nor appropriate money nor agree upon 
the number of vessels of war to be built or purchased, or the number of 
land or sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same, nor shall a question 
on any other point, except for adjourning from day to day, be determined, 
unless by the votes of a majority of the United States, in Congress as¬ 
sembled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the journal of their proceedings monthly, 
except such parts thereof relating to treaties, alliances, or military opera¬ 
tions as in their judgment require secrecy; and the yeas and nays of the 
delegates of each State on any question, shall be entered on the journal, 
when it is desired by any delegate; and the delegates of a State, or any 



ARTICLES OF CONFEDERATION, 1781-1788 


705 


of them, at his or their request, shall be furnished with a transcript of 
the said journal, except such parts as are above excepted, to lay before 
the legislatures of the several States. 

Art. X. The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of 
Congress as the United States, in Congress assembled, by the consent of 
nine States, shall, from time to time, think expedient to vest them with; 
provided that no power be delegated to the said committee, for the 
exercise of which, by the Articles of Confederation, the voice of nine 
States, in the Congress of the United States assembled, is requisite. 

Art. XI. Canada acceding to this Confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all 
the advantages of this Union ; but no other colony shall be admitted into 
the same unless such admission be agreed to by nine States. 

Art. XII. All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the assembling 
of the United States, in pursuance of the present Confederation, shall be 
deemed and considered as a charge against the United States, for payment 
and satisfaction whereof the said United States and the public faith are 
hereby solemnly pledged. 

Art. XIII. Every State shall abide by the determinations of the 
United States, in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the Articles of this Confed¬ 
eration shall be inviolably observed by every State, and the Union shall 
be perpetual; nor shall any alteration at any time hereafter be made in 
any of them, unless such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the legislatures of every 
State. 

And whereas it hath pleased the great Governor of the world to incline 
the hearts of the legislatures we respectively represent in Congress to 
approve of, and to authorize us to ratify the said Articles of Confederation 
and perpetual Union, Know ye, that we, the undersigned delegates, by 
virtue of the power and authority to us given for that purpose, do, by 
these presents, in the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every of the said Articles 
of Confederation and perpetual Union, and all and singular the matters 
and things therein contained. And we do further solemnly plight and 
engage the faith of our respective constituents, that they shall abide by 
the determinations of the United States, in Congress assembled, on all 
questions which by the said Confederation are submitted to them; and 
that the Articles thereof shall be inviolably observed by the States we 
respectively represent, and that the Union shall be perpetual. In witness 
whereof we have hereunto set our hands in Congress. Done at Philadel¬ 
phia, in the State of Pennsylvania, the ninth day of July, in the year of 
our Lord 1778, and in the third year of the Independence of America. 

[These Articles were not ratified by all the States until 1st March 
1781, when the delegates of Maryland, the latest in ratifying, signed for 
her.] 



706 


APPENDIX 


CONSTITUTION OF THE UNITED STATES 

We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE I 

Section 1. All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House 
of Representatives. 

Sec. 2. The House of Representatives shall be composed of members 
chosen every second year by the people of the several States, and the 
electors in each State shall have the qualifications requisite for electors of 
the most numerous branch of the State legislature. 

No person shall be a Representative who shall not have attained to the 
age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

[Representatives and direct taxes shall be apportioned among the sev¬ 
eral States which may be included within this Union, according to their 
respective numbers, which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three-fifths of all other persons.] 1 
The actual enumeration shall be made within three years after the first 
meeting of the Congress of the United States, and within every subse¬ 
quent term of ten years, in such manner as they shall by law direct. The 
number of Representatives shall not exceed one for every thirty thousand, 
but each State shall have at least one Representative; and until such 
enumeration shall be made, the State of New Hampshire shall be entitled 
to choose three, Massachusetts eight, Rhode Island and Providence Plan¬ 
tations one, Connecticut five, New York six, New Jersey four, Pennsyl¬ 
vania, eight, Delaware one, Maryland six, Virginia ten,. North Carolina 
five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any State, the ex¬ 
ecutive authority thereof shall issue writs of election to fill such vacan¬ 
cies. 

The House of Representatives shall choose their speaker and other 
officers ; and shall have the sole power of impeachment. 

Sec. 3. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for six years ; 
and each Senator shall have one vote. 

Immediately after they shall be assembled in consequence of the first 
election, they shall be divided as equally as may be into three classes. 
The seats of the Senators of the first class shall be vacated at the expira- 

1 The clause included in brackets is amended by the XIVth Amendment, 
2d section. 



CONSTITUTION OF THE UNITED STATES 


707 


tion of the second year, of the second class at the expiration of the fourth 
year, and of the third class at the expiration of the sixth year, so that 
one-third may be chosen every second year; and if vacancies happen by 
resignation, or otherwise, during the recess of the legislature of any State, 
the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies. 

No person shall be a Senator who shall not have attained to the age of 
thirty years, and been nine years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State for which he shall 
be chosen. 

The Vice-President of the United States shall be President of the Sen¬ 
ate, but shall have no vote, unless they be equally divided. 

The Senate shall choose their other officers, and also a president pro 
tempore , in the absence of the Vice-President, or when he shall exercise 
the office of President of the United States. 

The Senate shall have the sole power to try all impeachments. When 
sitting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside; 
and no person shall be convicted without the concurrence of two-thirds of 
the members present. 

Judgment in cases of impeachment shall not extend farther than to 
removal from office, and disqualification to hold and enjoy any office of 
honour, trust, or profit under the United States ; but the party convicted 
shall nevertheless be liable and subject to indictment, trial, judgment, and 
punishment according to law. 

Sec. 4. The times, places, and manner of holding elections for Sena¬ 
tors and Representatives shall be prescribed in each State by the legisla¬ 
ture thereof; but the Congress may at any time by law make or alter 
such regulations, except as to the places of choosing Senators. 

The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Sec. 5. Each house shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each shall constitute 
a quorum to do business ; but a smaller number may adjourn from day to 
day, and may be authorized to compel the attendance of absent members, 
in such manner, and under such penalties as each house may provide. 

Each house may determine the rules of its proceedings, punish its 
members for disorderly behaviour, and, with the concurrence of two- 
thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from time to 
time publish the same, excepting such parts as may in their judgment 
require secrecy; and the yeas and nays of the members of either house 
on any question shall, at the desire of one-fifth of those present, be 
entered on the journal. 

Neither house, during the session of Congress, shall, without the con¬ 
sent of the other, adjourn for more than three days, nor to any other 
place than that in which the two houses shall be sitting. 

Sec. 6. The Senators and Representatives shall receive a compensa¬ 
tion for their services, to be ascertained by law, and paid out of the Treas-= 




708 


APPENDIX 


ury of the United States. They shall in all cases, except treason, felony, 
and breach of the peace, be privileged from arrest during their attendance 
at the session of their respective houses, and in going to and returning 
from the same; and for any speech or debate in either house they shall 
not be questioned in any other place. 

No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall 
have been increased during such time; and no person holding any office 
under the United States shall be a member of either house during his 
continuance in office. 

Sec. 7. All bills for raising revenue shall originate in the House of 
Representatives; but the Senate may propose or concur with amend¬ 
ments as on other bills. 

Every bill which shall have passed the House of Representatives and 
the Senate shall, before it become a law, be presented to the President 
of the United States; if he approve he shall sign it, but if not he shall 
return it, with his objections, to that house in which it shall have origi¬ 
nated, who shall enter the objections at large on their journal, and pro¬ 
ceed to reconsider it. If after such reconsideration two-thirds of that 
house shall agree to pass the bill, it shall be sent, together with the objec¬ 
tions, to the other house, by which it shall likewise be reconsidered, and 
if approved by two-thirds of that house, it shall become a law. But in all 
such cases the votes of both houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill shall be en¬ 
tered on the journal of each house respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, in like manner 
as if he had signed it, unless the Congress by their adjournment prevent 
its return, in which case it shall not be a law. 

Every order, resolution, or vote to which the concurrence of the Sen¬ 
ate and House of Representatives may be necessary (except on a ques¬ 
tion of adjournment) shall be presented to the President of the United 
States; and before the same shall take effect shall be approved by him, 
or being disapproved by him, shall be repassed by two-thirds of the 
Senate and House of Representatives, according to the rules and limita¬ 
tions prescribed in the case of a bill. 

Sec. 8. The Congress shall have power to lay and collect taxes, duties, 
imposts, and excises, to paythe debts and provide for the common defence 
and general welfare of the United States; but all duties, imposts, and 
excises shall be uniform throughout the United States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States; 

To coin money, regulate the value thereof, and of foreign coin, and fix 
the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities and 
current coin of the United States; 



CONSTITUTION OF THE UNITED STATES 


709 


To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to their respec¬ 
tive writings and discoveries; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the high seas, 
and offences against the law of nations ; 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water; 

To raise and support armies, but no appropriation of money to that 
use shall be for a longer term than two years; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land and naval 
forces; 

To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions; 

To provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the 
United States, reserving to the States respectively the appointment of the 
officers and the authority of training the militia according to the disci¬ 
pline prescribed by Congress ; 

To exercise exclusive legislation in all cases whatsoever, over such dis - 
trict (not exceeding ten miles square) as may, by cession of particular 
States, and the acceptance of Congress, become the seat of the Govern¬ 
ment of the United States, and to exercise like authority over all places 
purchased by the consent of the legislature of the State in which the 
same shall be, for the erection of forts, magazines, arsenals, dockyards, 
and other needful buildings ; and 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this Con¬ 
stitution in the Government of the United States, or in any department 
or officer thereof. 

Sec. 9. The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be prohibited by 
the Congress prior to the year one thousand eight hundred and eight, but 
a tax or duty may be imposed on such importation, not exceeding ten 
dollars for each person. 

The privileges of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may re¬ 
quire it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct tax, shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported from any State. 

No preference shall be given by any regulation of commerce or revenue 
to the ports of one State over those of another; nor shall vessels bound 
to, or from, one State be obliged to enter, clear, or pay duties in an¬ 
other. 

No money shall be drawn from the Treasury, but in consequence of 
appropriation made by law; and a regular statement and account of the 



710 


APPENDIX 


receipts and expenditures of all public money shall be published from 
time to time. 

No title of nobility shall be granted by the United States; and no per¬ 
son holding any office of profit or trust under them shall, without the con¬ 
sent of the Congress, accept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or foreign state. 

Sec. 10. No state shall enter into any treaty, alliance, or confedera¬ 
tion ; grant letters of marque and reprisal; coin money; emit bills of 
credit; make anything but gold and silver coin a tender in payment of 
debts; pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any imposts or 
duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws; and the net produce of all duties and 
imposts, laid by any State on imports or exports, shall be for the use of 
the Treasury of the United States; and all such laws shall be subject to 
the revision and control of the Congress. 

No State shall, without the consent of Congress, lay any duty of ton¬ 
nage, keep troops or ships of war in time of peace, enter into any agree¬ 
ment or compact with another State, or with a foreign power, or en¬ 
gage in war, unless actually invaded, or in such imminent danger as will 
not admit of delay. 


ARTICLE II 

Section 1. The executive power shall be vested in a President of the 
United States of America. He shall hold his office during the term of 
four years, and together with the Vice-President, chosen for the same 
term, be elected as follows : 

Each State shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of Senators and 
Representatives to which the State may be entitled in the Congress ; but 
no Senator or Representative, or person holding an office of trust or profit 
under the United States, shall be appointed an elector. 

[The electors shall meet in their respective States, and vote by ballot 
for two persons, of whom one at least shall not be an inhabitant of the 
same State with themselves. And they shall make a list of all the per¬ 
sons voted for, and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the Government of the 
United States directed to the President of the Senate. The President of 
the Senate shall, in the presence of the Senate and House of Represen¬ 
tatives, open all the certificates, and the votes shall then be counted. 
The person having the greatest number of votes shall be the President, 
if such number be a majority of the whole number of electors appointed; 
and if there be more than one who have such majority and have an equal 
number of votes, then the House of Representatives shall immediately 
choose by ballot one of them for President; and if no person have a 
majority, then from the five highest on the list the said House shall in like 
manner choose the President. But in choosing the President, the votes 
shall be taken by States, the representation from each State having one 



CONSTITUTION OF THE UNITED STATES 


711 


vote; a quorum for this purpose shall consist of a member or members 
from two-thirds of the States, and a majority of all the States shall be 
necessary to a choice. In every case, after the choice of the President, 
the person having the greatest number of votes of the electors shall be 
the Vice-President; but if there should remain two or more who have 
equal votes, the Senate shall choose from them, by ballot, the Vice- 
President.] 1 

The Congress may determine the time of choosing the electors, and 
the day on which they shall give their votes; which day shall be the 
same throughout the United States. 

No person except a natural-born citizen, or a citizen of the United 
States at the time of the adoption of this Constitution, shall be eligible to 
the office of President; neither shall any person be eligible to that office 
who shall not have attained to the age of thirty-five years, and been four¬ 
teen years a resident within the United States. 

In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the Vice-President, and the Congress 
may by law provide for the case of removal, death, resignation, or ina¬ 
bility, both of the President and Vice-President, declaring what officer 
shall then act as President, and such officer shall act accordingly until 
the disability be removed, or a President shall be elected. 

The President shall, at stated times, receive for his services a compen¬ 
sation, which shall neither be increased nor diminished during the period 
for which he shall have been elected, and he shall not receive within that 
period any other emolument from the United States, or any of them. 

Before he enter on the execution of his office, he shall take the follow¬ 
ing oath or affirmation: 

“ I do solemnly swear (or affirm) that I will faithfully execute the 
office of President of the United States, and will, to the best of my ability, 
preserve, protect, and defend the Constitution of the United States.” 

Sec. 2. The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several States, when 
called into the actual service of the United States; he may require the 
opinion, in writing, of the principal officer in each of the executive depart¬ 
ments, upon any subject relating to the duties of their respective offices, 
and he shall have power to grant reprieves and pardons for offences 
against the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of the Senate, 
to make treaties, provided two-thirds of the Senators present concur; and 
he shall nominate, and by and with the advice and consent of the Senate, 
shall appoint ambassadors, other public ministers and consuls, judges of 
the Supreme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and which shall be 
established by law; but the Congress may by law vest the appointment 
of such inferior officers, as they think proper, in the President alone, in 
the courts of law, or in the heads of departments. 

The President shall have power to fill up all vacancies that may happen 


This clause in brackets has been superseded by the Xllth Amendment. 



712 


APPENDIX 


during the recess of the Senate, by granting commissions which shall 
expire at the end of their next session. 

Sec. 3. He shall from time to time give to the Congress information of 
the state of the Union, and recommend to their consideration such meas¬ 
ures as he shall judge necessary and expedient; he may, on extraordinary 
occasions, convene both houses, or either of them, and in case of disagree¬ 
ment between them, with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper; he shall receive 
ambassadors and other public ministers ; he shall take care that the laws 
be faithfully executed, and shall commission all the officers of the United 
States. 

Sec. 4. The President, Vice-President and all civil officers of the 
United States, shall be removed from office on impeachment for, and con¬ 
viction of, treason, bribery, or other high crimes and misdemeanours. 

ARTICLE III 

Section 1. The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress may from 
time to time ordain and establish. The judges, both of the Supreme and 
inferior courts, shall hold their offices during good behaviour, and shall, at 
stated times, receive for their services a compensation, which shall not be 
diminished during their continuance in office. 

Sec. 2. The judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, and treaties 
made, or which shall be made, under their authority ; to all cases affecting 
ambassadors, other public ministers, and consuls; to all cases of admiralty 
and maritime jurisdiction; to controversies to which the United States 
shall be a party; to controversies between two or more States ; between 
a State and citizens of another State ; between citizens of different States 
— between citizens of the same State claiming lands under grants of dif¬ 
ferent States, and between a State, or the citizens thereof, and foreign 
states, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, 
and those in which a State shall be party, the Supreme Court shall have 
original jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations as the Congress shall 
make. 

The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the State where the said crimes shall 
have been committed; but when not committed within any State, the trial 
shall be at such place or places as the Congress may by law have directed. 

Sec. 3. Treason against the United States shall consist only in levying 
war against them, or in adhering to their enemies, giving them aid and 
comfort. No person shall be competed of treason unless on the testimony 
of two witnesses to the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attainted. 



CONSTITUTION OF THE UNITED STATES 


713 


ARTICLE IV 

Section 1. Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other State. And 
the Congress may by general laws prescribe the manner in which such 
acts, records, and proceedings shall be proved, and the effect thereof. 

Sec. 2. The citizens of each State shall be entitled to all privileges and 
immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other crime, who 
shall flee from justice and be found in another State, shall, on demand of 
the executive authority of the State from which he fled, be delivered up, 
to be removed to the State having jurisdiction of the crime. 

No person held to service or labour in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu¬ 
lation therein, be discharged from such service or labour, but shall be 
delivered up on claim of the party to whom such service or labour may be 
due. 

Sec. 3. New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the jurisdiction of any 
other State; nor any State be formed by the junction of two or more 
States, or parts of States, without the consent of the legislatures of the 
States concerned as well as of the Congress. 

The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the 
United States; and nothing in this Constitution shall be so construed as 
to prejudice any claims of the United States, or of any particular State. 

Sec. 4. The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each of them 
against invasion; and on application of the legislature, or of the execu¬ 
tive (when the legislature cannot be convened), against domestic violence. 

ARTICLE V 

The Congress, whenever two-thirds of both houses shall deem it neces¬ 
sary, shall propose amendments to this Constitution, or on the applica¬ 
tion of the legislatures of two-thirds of the several States, shall call 
a convention for proposing amendments, which, in either case, shall 
be valid, to all intents and purposes, as part of this Constitution, when 
ratified by the legislatures of three-fourths of the several States, or by con¬ 
ventions in three-fourths thereof, as the one or the other mode of ratifica¬ 
tion may be proposed by the Congress; provided that no amendment 
which may be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses in the ninth 
section of the first article; and that no State, without its consent, shall 
be deprived of its equal suffrage in the Senate. 




714 


APPENDIX 


ARTICLE VI 

All debts contracted and engagements entered into, before the adop¬ 
tion of this Constitution, shall be as valid against the United States under 
this Constitution as under the Confederation. 

This Constitution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land; and the judges in every State shall be bound thereby, 
any thing in the constitution or laws of any State to the contrary notwith¬ 
standing. 

The Senators and Representatives before mentioned, and the members 
of the several State legislatures, and all executive and judicial officers, 
both of the United States and of the several States, shall be bound by 
oath or affirmation to support this Constitution; but no religious test 
shall ever be required as a qualification to any office or public trust under 
the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient 
for the establishment of this Constitution between the States so ratifying 
the same. 

Done in Convention by the unanimous consent of the States present, 1 
the Seventeenth day of September, in the year of our Lord 1787, and of 
the Independence of the United States of America the Twelfth. 

In Witness whereof we have hereunto subscribed our names. 

Go Washington, 

Presidt. and Deputy from Virginia. 

New Hampshire — John Langdon, Nicholas Gilman. Massachusetts 

— Nathaniel Gorham, Rufus King. Connecticut — Wm. Sami. John¬ 
son, Roger Sherman. New York — Alexander Hamilton. New Jersey 

— Wil. Livingston, Wm. Paterson, David Brearley, Jona. Dayton. 
Pennsylvania — B. Franklin, Thos. Fitzsimons, Thomas Mifflin, Jared 
Ingersoll, Robt. Morris, James Wilson, Geo. Clymer, Gouv. Morris. 
Delaware — Geo. Read, Richard Bassett, Gunning Bedford, Jun., Jaco. 
Broom, John Dickinson. Maryland — James M’Henry, Dan. Carroll, 
Dan. Jenifer, of St. Thomas. Virginia — John Blair, James Madison, 
Jun. North Carolina — Wm. Blount, Hugh Williamson, Rich’d Dobbs 
Spaight. South Carolina — J. Rutledge, Charles Pinckney, Charles 
Cotesworth Pinckney, Pierce Butler. Georgia — William Few, Abr. 
Baldwin. 

Attest: William Jackson, Secretary. 

1 Rhode Island was not represented. Several of the delegates had left the 
Convention before it concluded its labours, and some others who remained 
refused to sign. In all, 65 delegates had been appointed, 55 attended, 39 signed. 

The first ratification was that of Delaware, Dec. 7, 1787; the ninth (bring¬ 
ing the Constitution into force) that of New Hampshire, June 21, 1788; the 
last, that of Rhode Island, May 29, 1790. 



CONSTITUTION OF THE UNITED STATES 


715 


Articles in addition to, and amendment of, the Constitution of the United 
States of America, proposed by Congress, and ratified by the Legis¬ 
latures of the several States, pursuant to the fifth Article of the origi¬ 
nal Constitution. 

ARTICLE I 1 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech 
or of the press; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 

ARTICLE II 

A well-regulated militia being necessary to the security of a free state, 
the right of the people to keep and bear arms shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace, be quartered in any house, without 
the consent of the owner, nor in. the time of war, but in a manner to be 
prescribed by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio¬ 
lated, and no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger; nor shall any person be subject 
for the same offence to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of law; nor 
shall private property be taken for public use, without just compensation. 

ARTICLE VI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature 
and cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in his favour, 
and to have the assistance of counsel for his defence. 

1 Amendments I-X inclusive were proposed by Congress to the Legislatures 
of the States, Sept. 25, 1789, and ratified 1789-91. 




716 


APPENDIX 


ARTICLE VII 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise re-examined in any court of the United 
States than according to the rules of the co mm on law. 

ARTICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

ARTICLE IX 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 

ARTICLE X 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people. 

ARTICLE XI 1 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against one 
of the United States by citizens of another State, or by citizens or subjects 
of any foreign State. 

ARTICLE XII 2 

The electors shall meet in their respective States, and vote by ballot 
for President and Vice-President, one of whom at least shall not be an 
inhabitant of the same State with themselves; they shall name in their 
ballots the person voted for as President, and in distinct ballots the per¬ 
son voted for as Vice-President, and they shall make distinct lists of all 
persons voted for as President, and of all persons voted for as Vice-Presi¬ 
dent, and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the Government of the United 
States, directed to the President of the Senate; — The President of the 
Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted ; — The per¬ 
son having the greatest number of votes for President shall be the Presi¬ 
dent, if such number be a majority of the whole number of electors 
appointed; and if no person have such majority, then from the persons 
having the highest numbers not exceeding three on the list of those voted 

1 Amendt. XI was proposed by Congress Sept. 5, 1794, and declared to have 
been ratified by the legislatures of three-fourths of the States, Jan. 8, 1798. 

2 Amendt. XII was proposed by Congress Dec. 12,1803, and declared to have 
been ratified Sept. 25, 1804. 




CONSTITUTION OF THE UNITED STATES 717 


for as President, the House of Representatives shall choose immediately, 
by ballot, the President. But in choosing the President, the votes shall 
be taken by States, the representation from each State having one vote; 
a quorum for this purpose shall consist of a member or members from 
two-thirds of the States, and a majority of all the States shall be neces¬ 
sary to a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the Vice-President shall act 
as President, as in the case of the death or other constitutional disability 
of the President. 

The person having the greatest number of votes as Vice-President shall 
be the Vice-President, if such number be a majority of the whole number 
of electors appointed, and if no person have a majority, then from the two 
highest numbers on the list the Senate shall choose the Vice-President; 
a quorum for the purpose shall consist of two-thirds of the whole number 
of Senators, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of Presi¬ 
dent shall be eligible to that of Vice-President of the United States. 

ARTICLE XIII' 

Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their juris¬ 
diction. 

Sec. 2. Congress shall have power to enforce this article by appro¬ 
priate legislation. 

ARTICLE XIV 1 2 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, liberty, or property, 
without due process of law ; nor deny to any person within its jurisdic¬ 
tion the equal protection of the laws. 

Sec. 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for President and Vice- 
President of the United States, Representatives in Congress, the execu¬ 
tive and judicial officers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State being 
twenty-one years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other crime, the basis of 
representation therein shall be reduced in the proportion which the num- 

1 Amendt. XIII was proposed by Congress Feb. 1, 1865, and declared to 
have been ratified by 27 of the 36 States, Dec. 18, 1865. 

2 Amendt. XIV was proposed by Congress June 16, 1866, and declared to 
have been ratified by 30 of the 36 States, July 28, 1868. 




718 


APPENDIX 


ber of such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

Sec. 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or mili¬ 
tary, under the United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or judi¬ 
cial officer of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may, by a vote of 
two-thirds of each House, remove such disability. 

Sec. 4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any 
debt or obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations, and claims shall be held illegal and void. 

Sec. 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

ARTICLE XV 1 

Section 1. The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State on account 
of race, colour, or previous condition of servitude. 

Sec. 2. The Congress shall have power to enforce this article by 
appropriate legislation. 


ARTICLE XVI 2 

The Congress shall have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the 
several States, and without regard to any census or enumeration. 

ARTICLE XVII 3 

The Senate of the United States shall be composed of two senators 
from each State, elected by the people thereof, for six years ; and each 
senator shall have one vote. The electors in each State shall have the 
qualifications requisite for electors of the most numerous branch of the 
State legislature. 

When vacancies happen in the representation of any State in the 
Senate, the executive authority of such State shall issue writs of election 

1 Amendt. XV was proposed by Congress Feb. 26, 1869, and declared to have 
been ratified by 29 of the 37 States, March 30, 1870. 

2 Passed July, 1909 ; proclaimed February 25, 1913. 

3 Passed May, 1912, in lieu of paragraph one, Section 3, Article I, of the Con¬ 
stitution and so much of paragraph two of the same Section as relates to the 
filling of vacancies; proclaimed May 31, 1913. 



CONSTITUTION OF OKLAHOMA 


719 


to fill such vacancies : Provided, That the legislature of any State may 
empower the executive thereof to make temporary appointments until 
the people fill the vacancies by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or 
term of any senator chosen before it becomes valid as part of the 
Constitution. 


EXTRACTS FROM THE CONSTITUTION OF THE STATE 
OF OKLAHOMA 1 

Adopted in Convention at the City of Guthrie in the Territory of Okla¬ 
homa on July 10th, 1907, and ratified by the People on Sept. 17th in the 
same year. 

PREAMBLE 

Section 1. — Invoking the guidance of Almighty God, in order to 
secure and perpetuate the blessing of liberty; to secure just and rightful 
government; to promote our mutual welfare and happiness, we, the 
people of the State of Oklahoma, do ordain and establish this Constitu¬ 
tion. 

Sec. 2. — Constitution of the United States Supreme. —- Section 1. 
The State of Oklahoma is an inseparable part of the Federal Union, 
and the Constitution of the United States is the supreme law of the 
land. 

Sec. 3. — Toleration of Religious Sentiment. ■— Perfect toleration of 
religious sentiment shall be secured, and no inhabitant of the State 
shall ever be molested in person or property on account of his or her 
mode of religious worship; and no religious test shall be required for 
the exercise of civil or political rights. Polygamous or plural mar¬ 
riages are forever prohibited. 

Sec. 7. — Public Schools. — Provisions shall be made for the estab¬ 
lishment and maintenance of a system of public schools, which shall 
be open to all the children of the State and free from sectarian con¬ 
trol ; and said schools shall always be conducted in English : Provided, 
That nothing herein shall preclude the teaching of other languages in 
said public schools : And Provided, Further, That this shall not be 
construed to prevent the establishment and maintenance of separate 
schools for white and colored children. 

Sec. 8. — Right of Suffrage; Abridgment of. — The State shall never 
enact any law restricting or abridging the right of suffrage on account 
of race, color, or previous condition of servitude. 

i This Constitution is the latest adopted by a new state up to a.d. 1910. 
Attention is specially called to the following provisions given in the extracts 
quoted, viz. Bill of Rights §§ 3, 8, 10-35, 38-42: Sale of intoxicants § 9: 
Primaries § 47 : Initiative and Referendum §§ 51-62, 291-2, 415-9, t 447-8 : Limi¬ 
tations on the power of the legislature (35 restrictions specified) §§ 119-136 : Cor¬ 
porations §§ 205-219, 231-42, 245, 251, 254-7, 260, 422-3: State Debts §281, 
289-93 : Power to cities to make their own charters §§ 413-4: Homestead and 
Exemptions §§ 304-5: Making void contracts §§ 442-3. 





720 


APPENDIX 


Sec. 9. — Introduction and Sale of Liquor as Provided in Enabling 
Act. — The manufacture, sale, barter, giving away, or otherwise 
furnishing, except as hereinafter provided, of intoxicating liquors 
within those parts of the State, heretofore known as the Indian Territory 
and the Osage Indian Reservation, and within any other parts of the 
State which existed as Indian reservations on the first day of January, 
Nineteen Hundred and Six, is prohibited for a period of twenty-one 
years from the date of the admission of the State into the Union, and 
thereafter until the people of the State shall otherwise provide by 
amendment of this Constitution and proper State legislation. Any 
person, individual or corporate, who shall manufacture, sell, barter, give 
away, or otherwise furnish any intoxicating liquor of any kind, including 
beer, ale, and wine, contrary to the provisions of this section, or who 
shall, within the above described portions of the State, advertise for 
sale or solicit the purchase of any such liquors, or who shall ship or in any 
way convey such liquors from other parts of the State into the portions 
hereinbefore described, shall be punished, on conviction thereof, by 
fine not less than fifty dollars and by imprisonment not less than 
thirty days for each offense: Provided, That the Legislature may pro¬ 
vide by law for one agency under supervision of the State in each in¬ 
corporated town of not less than two thousand population in the portions 
of the State hereinbefore described; and if there be no incorporated 
town of two thousand population in any county in said portions of the 
State, such county shall be entitled to have one such agency, for the 
sale of such liquors for medicinal purposes ; and for the sale, for indus¬ 
trial purposes, of alcohol which shall have been denaturized by some 
process approved by the United States Commissioner of Internal 
Revenue; and for the sale of alcohol for scientific purposes to such 
scientific institutions, universities, and colleges as are authorized to 
procure the same free of tax under the laws of the United States; and 
for the sale of such liquors to any apothecary who shall have executed 
an approved bond, in a sum not less than one thousand dollars, condi¬ 
tioned that none of such liquors shall be used or disposed of for any 
purpose other than in the compounding of prescriptions or other 
medicines, the sale of which would not subject him to the payment of 
the special tax required of liquor dealers by the United States, and the 
payment of such special tax by any person within the parts of the State 
hereinabove defined shall constitute prima facie evidence of his intention 
to violate the provisions of this section. No sale shall be made except 
upon the sworn statement of the applicant in writing setting forth the 
purpose for which the liquor is to be used, and no sale shall be made for 
medicinal purposes except sales to apothecaries as hereinabove provided 
unless such statement shall be accompanied by a bona fide prescription 
signed by a regular practicing physician, which prescription shall not 
be filled more than once. Each sale shall be duly registered, and the 
register thereof, together with the affidavits and prescriptions pertaining 
thereto, shall be open to inspection by any officer or citizen of the State 
at all times during business hours. Any person who shall knowingly 
make a false affidavit for the purpose aforesaid shall be deemed guilty 
of perjury. Any physician who shall prescribe any such liquor, except 



CONSTITUTION OF OKLAHOMA 


721 


for treatment of disease which, after his own personal diagnosis, he shall 
deem to require such treatment, shall, upon conviction thereof, be pun¬ 
ished for each offense by fine of not less than two hundred dollars, or 
by imprisonment for not less than thirty days, or by both such fine and 
imprisonment; and any person connected with any such agency, who 
shall be convicted of making any sale or other disposition of liquor con¬ 
trary to these provisions, shall be punished by imprisonment for not less 
than one year and one day. Upon the admission of the State into the 
Union these provisions shall be immediately enforcible in the courts of 
the State. 

Sec. 10. — All Political Power Inherent in People. —- Section 1. All 
political power is inherent in the people ; and government is instituted 
for their protection, security, and benefit, and to promote their general 
welfare ; and they have the right to alter or reform the same whenever 
the public good may require it: Provided, Such change be not repugnant 
to the Constitution of the United States. 

Sec. 11. — Right to Life, Liberty, etc. — All persons have the inher¬ 
ent right to life, liberty, the pursuit of happiness, and the enjoy¬ 
ment of the gains of their own industry. 

Sec. 12. — Right of People to Peaceably Assemble. — The people 
have the right peaceably to assemble for their own good, and to apply 
to those invested with the powers of government for redress of griev¬ 
ances by petition, address, or remonstrance. 

Sec. 13. — Restriction of Civil and Military Power. — No power, 
civil or military, shall ever interfere to prevent the free exercise of the 
right of suffrage by those entitled to such right. 

Sec. 14. — Public Money; Cannot be Appropriated for Any Church, 
etc. — No public money or property shall ever be appropriated, applied, 
donated, or used, directly or indirectly, for the use, benefit, or sup¬ 
port of any sect, church, denomination, or system of religion, or for 
the use, benefit, or support of any priest, preacher, minister, or other 
religious teacher or dignitary, or sectarian institution as such. 

Sec. 15. — Courts of Justice Open; Speedy Remedy. — The courts 
of justice of the State shall be open to every person, and speedy 
and certain remedy afforded for every wrong and for every injury to 
person, property, or reputation; and right and justice shall be admin¬ 
istered without sale, denial, delay, or prejudice. 

Sec. 16. — Due Process of Law. — No person shall be deprived of life, 
liberty, or property, without due process of law. 

Sec. 17. — All Offenses Bailable Except Capital. — All persons 
shall be bailable by sufficient sureties, except for capital offenses when 
the proof of guilt is evident, or the presumption thereof is great. 

Sec. 18. — Excessive Bail. — Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel or unusual punishments 
inflicted. 

Sec. 19. — Writ of Habeas Corpus. — The privilege of the writ ot 
habeas corpus shall never be suspended by the authorities of this State. 

Sec. 20. — Officers; Personal Attention to Duties. — Every person 
elected or appointed to any office or employment of trust or profit 
under the laws of the State, or under any ordinance of any municipality 



722 


APPENDIX 


thereof, shall give personal attention to the duties of the office to 
which he is elected or appointed. 

Sec. 21. — Restriction on Right to Hold Office. — No member of 
Congress from this State, or person holding any office of trust or 
profit under the laws of any other State, or of the United States, shall 
hold any office of trust or profit under the laws of this State. 

Sec. 22. — Imprisonment for Debt Prohibited. — Imprisonment for 
debt is prohibited, except for the non-payment of fines and penalties 
imposed for the violation of law. 

Sec. 23. —- Military Subordinate to Civil Authority. — The military 
shall be held in strict subordination to the civil authorities. No 
soldier shall be quartered in any house, in time of peace, without the 
consent of the owner, nor in time of war, except in a manner to be 
prescribed by law. 

Sec. 24.— Ex Post Facto Laws; Contracts. — No bill of attainder, 
ex post facto law, nor any law impairing the obligation of contracts, 
shall ever be passed. No conviction shall work a corruption of blood 
or forfeiture of estate : Provided, That this provision shall not prohibit 
the imposition of pecuniary penalties. 

Sec. 25. — Treason. — Treason against the State shall consist 
only in levying war against it or in adhering to its enemies, giving 
them aid and comfort. No person shall be convicted of treason, unless 
on the testimony of two witnesses to the same overt act, or on 
confession in open court. 

Sec. 26. — Indictment; Information; Examining Trial. — No person 
shall be prosecuted criminally in courts of record for felony or mis¬ 
demeanor otherwise than by presentment or indictment or by infor¬ 
mation. No person shall be prosecuted for a felony by information 
without having had a preliminary examination before an examining 
magistrate, or having waived such preliminary examination. Prosecu¬ 
tions may be instituted in courts not of record upon a duly verified 
complaint. 

Sec. 27. — Grand Jury. — A grand jury shall be composed of twelve 
men, any nine of whom concurring may find an indictment or true 
bill. A grand jury shall be convened upon the order of a judge of 
a court having the power to try and determine felonies, upon his own 
motion; or such grand jury shall be ordered by such judge upon the 
filing of a petition therefor signed by one hundred resident taxpayers 
of the county; when so assembled such grand jury shall have power to 
investigate and return indictments for all character and grades of crime, 
and such other powers as the Legislature may prescribe: Provided, 
That the Legislature may make the calling of a grand jury compulsory. 

Sec. 28. — Petit Jury; Trial. — The right of trial by jury shall be 
and remain inviolate, and a jury for the trial of civil and criminal cases 
in courts of record, other than county courts, shall consist of twelve men; 
but, in county courts and courts not of record, a jury shall consist of six 
men. This section shall not be so construed as to prevent limitations 
being fixed by law upon the right of appeal from judgments of courts not 
of record in civil cases concerning causes of action involving less than 
twenty dollars. In civil cases, and in criminal cases less than felonies, 




CONSTITUTION OF OKLAHOMA 


723 


three-fourths of the whole number of jurors concurring shall have power 
to render a verdict. In all other cases the entire number of jurors 
must concur to render a verdict. In case a verdict is rendered by less 
than the whole number of jurors, the verdict shall be in writing and 
signed by each juror concurring therein. 

Sec. 29. — Criminal Prosecutions; Change of Venue; To be Con¬ 
fronted with Witnesses. -— In all criminal prosecutions the accused 
shall have the right to a speedy and public trial by an impartial jury 
of the county in which the crime shall have been committed: 
Provided, That the venue may be changed to some other county of the 
State, on the application of the accused, in such manner as may be 
prescribed by law. He shall be informed of the nature and cause of the 
accusation against him and have a copy thereof, and be confronted 
with the witnesses against him, and have compulsory process for ob¬ 
taining witnesses in his behalf. He shall have the right to be heard by 
himself and counsel; and in capital cases, at least two days before the 
case is called for trial, he shall be furnished with a list of the witnesses 
that will be called in chief, to prove the allegations of the indictment 
or information, together with their postoffice addresses. 

Sec. 30. — Evidence Against Oneself; Jeopardy. — No person shall 
be compelled to give evidence which will tend to incriminate him, 
except as in this Constitution specifically provided; nor shall any 
person, after having been once acquitted by a jury, be again put in 
jeopardy of life or liberty for that of which he has been acquitted. Nor 
shall any person be twice put in jeopardy of life or liberty for the same 
offense. 

Sec. 31. — Right of Free Speech; Libel. — Every person may freely 
speak, write, or publish his sentiments on all subjects, being respon¬ 
sible for the abuse of that right; and no law shall be passed to 
restrain or abridge the liberty of speech or of the press. In all criminal 
prosecutions for libel, the truth of the matter alleged to be libelous may 
be given in evidence to the jury, and if it shall appear to the jury 
that the matter charged as libelous be true, and was written or pub¬ 
lished with good motives and for justifiable ends, the party shall be 
acquitted. 

Sec. 32. — Private Property Not to be Taken for Private TJse. — No 
private property shall be taken or damaged for private use, with or 
without compensation, unless by consent of the owner, except for private 
ways of necessity, or for drains and ditches across lands of others for 
agricultural, mining, or sanitary purposes, in such manner as may be 
prescribed by law. 

Sec. 35. — Right to Bear Arms; Weapons. — The right of a citizen 
to keep and bear arms in defense of his home, person, or property, 
or in aid of the civil power, when thereunto legally summoned, shall 
never be prohibited; but nothing herein contained shall prevent the 
Legislature from regulating the carrying of weapons. 

Sec. 36. — Evidence; Compelled to Give; Immunity. — Any per¬ 
son having knowledge or possession of facts that tend to establish 
the guilt of any other person or corporation charged with an offense 
against the laws of the State, shall not be excused from giving testimony 






724 


APPENDIX 


or producing evidence, when legally called upon so to do, on the ground 
that it may tend to incriminate him under the laws of the State; but 
no person shall be prosecuted or subjected to any penalty or forfeiture 
for or on account of any transaction, matter, or thing concerning which 
he may so testify or produce evidence. 

Sec. 37. — Records of Corporations Open to Inspection. — The 
records, books, and files of all corporations shall be, at all times, 
liable and subject to the full visitorial and inquisitorial powers of the 
State, notwithstanding the immunities and privileges in this Bill of 
Rights secured to the persons, inhabitants, and citizens thereof. 

Sec. 38. — No Person Transported Out of State; Due Process of Law. 
— No person shall be transported out of the State for any offense 
committed within the State, nor shall any person be transported out 
of the State for any purpose, without his consent, except by due 
process of law; but nothing in this provision shall prevent the operation 
of extradition laws, or the transporting of persons sentenced for crime, 
to other states for the purpose of incarceration. 

Sec. 39. — Search Warrants and Seizures. — The right of the people 
to be secure in their persons, houses, papers, and effects against unrea¬ 
sonable searches or seizures shall not be violated ; and no warrant shall 
issue but upon probable cause supported by oath or affirmation, 
describing as particularly as may be the place to be searched and the 
person or thing to be seized. 

Sec. 40. — State May Engage in Business. — The right of the State 
to engage in any occupation or business for public purposes shall 
not be denied nor prohibited, except that the State shall not engage in 
agriculture for any other than educational and scientific purposes and 
for the support of its penal, charitable, and educational institutions. 

Sec. 41. — Perpetuities and Monopolies Prohibited. — Perpetuities 
and monopolies are contrary to the genius of a free government, and 
shall never be allowed, nor shall the law of primogeniture or entail- 
ments ever be in force in this State. 

Sec. 42. —- Enumeration of Rights No Denial of Others. — The 
enumeration in this Constitution of certain rights shall not be con¬ 
strued to deny, impair, or disparage others retained by the people. 

Sec. 46. — Election Board; Direct Vote for Senators. — The Legisla¬ 
ture shall enact laws creating an election board (not more than a 
majority of whose members shall be selected from the same political 
party), and shall provide the time and manner of holding and conducting 
all elections ; and, at any time the Federal Constitution may permit the 
election of United States senators by direct vote of the people, the 
Legislature shall provide for their election as for the election of Gov¬ 
ernor and other elective officers. 

Sec. 47. — Mandatory Primary. — The Legislature shall enact laws 
providing for a mandatory primary system, which shall provide for 
the nomination of all candidates in all elections for State, District, 
County, and municipal officers, for all political parties, including 
United States Senators: Provided, However, this provision shall not 
exclude the right of the people to place on the ballot by petition any 
non-partisan candidate. 



CONSTITUTION OF OKLAHOMA 


725 


Sec. 50. — Legislative , Executive and Judicial. — Section 1. The 
powers of the government of the State of Oklahoma shall be divided 
into three separate departments : The Legislative, Executive, and Judi¬ 
cial ; and except as provided in this Constitution, the Legislative, 
Executive, and Judicial departments of government shall be separate 
and distinct, and neither shall exercise the powers properly belonging 
to either of the others. 

Sec. 51. — Reservation of Right of People. — The Legislative author¬ 
ity of the State shall be vested in a Legislature, consisting of a Senate 
and a House of Representatives; but the people reserve to them¬ 
selves the power to propose laws and amendments to the Constitution 
and to enact or reject the same at the polls independent of the Legisla¬ 
ture, and also reserve power at their own option to approve or reject 
at the polls any act of the Legislature. 

Sec. 52. — Petition; Per Centum Required. — The first power 
reserved by the people is the initiative, and eight per centum of the 
legal voters shall have the right to propose any legislative measure, 
and fifteen per centum of the legal voters shall have the right to 
propose amendments to the Constitution by petition, and every such 
petition shall include the full text of the measure so proposed. The 
second power is the referendum, and it may be ordered (except as to 
laws necessary for the immediate preservation of the public peace, 
health, or safety), either by petition signed by five per centum of the 
legal voters or by the Legislature as other bills are enacted. The ratio 
and per centum of legal voters hereinbefore stated shall be based upon 
the total number of votes cast at the last general election for the State 
office receiving the highest number of votes at such election. 

Sec. 53. — Referendum; Petition; Veto. — Referendum petitions 
shall be filed with the Secretary of State not more than ninety days 
after the final adjournment of the session of the Legislature which 
passed the bill on which the referendum is demanded. The veto power 
of the Governor shall not extend to measures voted on by the people. 
All elections on measures referred to the people of the State shall be had 
at the next election held throughout the State, except when the Legisla¬ 
ture or the Governor shall order a special election for the express purpose 
of making such reference. Any measure referred to the people by the 
initiative shall take effect and be in force when it shall have been 
approved by a majority of the votes cast in such election. Any meas¬ 
ure referred to the people by the referendum shall take effect and be in 
force when it shall have been approved by a majority of the votes cast 
thereon and not otherwise. 

Sec. 54. — Style of Bills. — The style of all bills shall be: “Be it 
Enacted By the People of the State of Oklahoma.” 

Sec. 55. — Petitions to he Filed. — Petitions and orders for the 
initiative and for the referendum shall be filed with the Secretary of 
State and addressed to the Governor of the State, who shall submit 
the same to the people. The Legislature shall make suitable provisions 
for carrying into effect the provisions of this article. 

Sec. 56. — Referendum Against One or More Items. The refer¬ 
endum may be demanded by the people against one or more items, 




726 


APPENDIX 


sections, or parts of any act of the Legislature in the same manner in 
which such power may be exercised against a complete act. The filing of 
a referendum petition against one or more items, sections, or parts of 
an act shall not delay the remainder of such act from becoming operative. 

Sec. 57. — Reserved to County and District. — The powers of the 
initiative and referendum reserved to the people by this Constitution 
for the State at large, are hereby further reserved to the legal voters 
of every county and district therein, as to all local legislation, or action, 
in the administration of county and district government in and for their 
respective counties and districts. 

Sec. 58. — Prescribed by General Laws; Power of County Commis¬ 
sioners in Local Matters. — The manner of exercising said powers shall 
be prescribed by general laws, except that Boards of County Commis¬ 
sioners may provide for the time of exercising the initiative and refer¬ 
endum powers as to local legislation in their respective counties and 
districts. 

Sec. 59. — Number of Petitioners in County or District. — The 
requisite number of petitioners for the invocation of the initiative 
and referendum in counties and districts shall bear twice, or double, 
the ratio to the whole number of legal voters in such county or district, 
as herein provided therefor in the State at large. 

Sec. 60. — Measures Rejected Cannot be Proposed for Three Years. — 
Any measure rejected by the people, through the powers of the initia¬ 
tive and referendum, cannot be again proposed by the initiative 
within three years thereafter by less than twenty-five per centum of the 
legal voters. 

Sec. 61. — Right of Legislature to Pass or Repeal. — The reser¬ 
vation of the powers of the initiative and referendum in this article 
shall not deprive the Legislature of the right to repeal any law, propose 
or pass any measure, which may be consistent with the Constitution 
of the State and the Constitution of the United States. 

Sec. 62. — Corruption in Initiative and Referendum. — Laws shall 
be provided to prevent corruption in making, procuring, and submit¬ 
ting initiative and referendum petitions. 

Sec. 119. — Limitations upon Power of Legislature to Pass Local 
or Special Laws. — The Legislature shall not, except as otherwise 
provided in this Constitution, pass any local or special law author¬ 
izing : 

Sec. 119a. — The creation, extension, or impairing of liens; 

Sec. 119b. — Regulating the affairs of counties, cities, towns, wards, 
or school districts; 

Sec. 119c. — Changing the names of persons or places; 

Sec. 119d. — Authorizing the laying out, opening, altering, or main¬ 
taining of roads, highways, streets, or alleys; 

Sec. 119e. —Relating to ferries or bridges, or incorporating ferry or 
bridge companies, except for the erection of bridges crossing streams 
which form boundaries between this and any other State; 

Sec. 119f. — Vacating roads, town plats, streets, or alleys; 

Sec. 119g. — Relating to cemeteries, graveyards, or public grounds 
not owned by the State; 



CONSTITUTION OF OKLAHOMA 


727 


Sec. 119h. — Authorizing the adoption or legitimation of children; 

Sec. 119i. — Locating or changing county seats; 

Sec. 119j. — Incorporating cities, towns, or villages, or changing 
their charters; 

Sec. 119k. — For the opening and conducting of elections, or fixing 
or changing the places of voting; 

Sec. 1191. — Granting divorces; 

Sec. 119m. — Creating offices, or prescribing the powers and duties of 
officers in counties, cities, towns, election or school districts; 

Sec. 119n. — Changing the law of descent or succession; 

Sec. 119o. — Regulating the practice or jurisdiction of, or changing 
the rules of evidence in judicial proceedings or inquiry before the courts, 
justices of the peace, sheriffs, commissioners, arbitrators, or other tribu¬ 
nals, or providing or changing the methods for the collection of debts, 
or the enforcement of judgments or prescribing the effect of judicial 
sales of real estate; 

Sec. 119p. — Regulating the fees, or extending the powers and duties 
of aldermen, justices of the peace, or constables; 

Sec. 119q. — Regulating the management of public schools, the 
building or repairing of school houses, and the raising of money for such 
purposes; 

Sec. 119r. — Fixing the rate of interest; 

Sec. 119s. — Affecting the estate of minors, or persons under dis¬ 
ability ; 

Sec. 119t. — Remitting fines, penalties and forfeitures, and refunding 
moneys legally paid into the treasury; 

Sec. 119u. — Exempting property from taxation ; 

Sec. 119v. —- Declaring any named person of age; 

Sec. 119w. — Extending the time for the assessment or collection of 
taxes, or otherwise relieving any assessor or collector of taxes from due 
performance of his official duties, or his securities from liability; 

Sec. 119x. — Giving effect to informal or invalid wills or deeds; 

Sec. 119y. — Summoning or impaneling grand or petit juries; 

Sec. 119z. — For limitation of civil or criminal actions ; 

Sec. 119zl. — For incorporating railroads or other works of internal 
improvement; 

Sec. 119z 2. — Providing for change of venue in civil and criminal 
cases. 

Sec. 120. — No Officer to be Retired on Pay. — The Legislature shall 
not retire any officer on pay or part pay, or make any grant to such 
retiring officer. 

Sec. 121. — Bureau of Immigration; No Money Appropriated For. — 
The Legislature shall have no power to appropriate any of the public 
money for the establishment and maintenance of a Bureau of Immi¬ 
gration in this State. 

Sec. 122. — Employees of Legislature; Number and Emolument.-- 
The legislature shall not increase the number or emolument of its 
employes, or the employes of either House, except by general law, 
which shall not take effect during the term at which such increase was 
made. 



728 


APPENDIX 


Sec. 123. — No Property Exempt from Taxation. — The Legislature 
shall pass no law exempting any property withis [within] this State 
from taxation, except as otherwise provided in this Constitution. 

Sec. 124. — No Exclusive Rights Granted. — The Legislature shall 
pass no law granting to any association, corporation, or individual any 
exclusive rights, privileges, or immunities within this State. 

Sec. 125. — No Power to Revive or Take Away Right of Action. — 
The Legislature shall have no power to revive any right or remedy 
which may have become barred by lapse of time, or by any statute 
of this State. After suit has been commenced on any cause of action, 
the Legislature shall have no power to take away such cause of action, 
or destroy any existing defense to such suit. 

Sec. 126. — No Power to Release Indebtedness of Corporation or Indi¬ 
vidual. — The Legislature shall have no power to release or extinguish, 
or to authorize the releasing or extinguishing, in whole or in part, the in¬ 
debtedness, liabilities, or obligations of any corporation, or individual, 
to this State, or any county or other municipal corporation thereof. 

Sec. 127. — Repeal of Statute Does Not Affect Vested Rights. — The 
repeal of a statute shall not revive a statute previously repealed by 
such statute, nor shall such repeal affect any accrued right, or penalty 
incurred, or proceedings begun by virtue of such repealed statute. 

Sec. 130. — Acts to Embrace One Subject; Amendments. — Every 
act of the Legislature shall embrace but one subject, which shall be 
clearly expressed in its title, except general appropriation bills, general 
revenue bills, and bills adopting a code, digest, or revision of statutes; 
and no law shall be revised, amended, or the provisions thereof extended 
or conferred, by reference to its title only; but so much thereof as is 
revised, amended, extended, or conferred shall be re-enacted and pub¬ 
lished at length : Provided, That if any subject be embraced in any act 
contrary to the provisions of this section, such act shall be void only 
as to so much of the law as may not be expressed in the title thereof. 

Sec. 131. — Acts to Take Effect in Ninety Days; Franchises; Emer¬ 
gency. — No act shall take effect until ninety days after the adjourn¬ 
ment of the session at which it was passed, except enactments for carry¬ 
ing into effect provisions relating to the initiative and referendum, 
or a general appropriation bill, unless, in case of emergency, to be ex¬ 
pressed in the act, the Legislature, by a vote of two-thirds of all members 
elected to each House, so directs. An emergency measure shall include 
only such measures as are immediately necessary for the preservation of 
the public peace, health, or safety, and shall not include the granting of 
franchises or license to a corporation or individual, to extend longer 
than one year, nor provision for the purchase or sale of real estate, nor 
the renting or encumbrance of real property for a longer term than one 
year. Emergency measures may be vetoed by the Governor, but such 
measures so vetoed may be passed by a three-fourths vote of each House, 
to be duly entered on the journal. 

Sec. 132. — General Laws to Have Uniform Operation. — Laws 
of a general nature shall have a uniform operation throughout the 
State, and where a general law can be made applicable, no special law 
shall be enacted. 



CONSTITUTION OF OKLAHOMA 


729 


Sec. 133. — System of Checks and Balances Between Officials. — 
The Legislature shall provide by law for the establishment and main¬ 
tenance of an efficient system of checks and balances between the 
officers of the Executive Department, and all commissioners and super¬ 
intendents, and boards of control of State institutions, and all other 
officers entrusted with the collection, receipt, custody, or disbursement 
of the revenue or moneys of the State whatsoever. 

ARTICLE VI 

Sec. 134. — Officials Constituting Executive Authority. — The Ex¬ 
ecutive authority of the State shall be vested in a Governor, Lieu¬ 
tenant Governor, Secretary of State, State Auditor, Attorney 
General, State Treasurer, Superintendent of Public Instruction, State 
Examiner and Inspector, Chief Mine Inspector, Commissioner of Labor, 
Commissioner of Charities and Corrections, Commissioner of Insurance, 
and other offices provided by law and this Constitution, each of whom 
shall keep his office and public records, books, and papers at the seat of 
government, and shall perform such duties as may be designated in this 
Constitution or prescribed by law. 

Sec. 153. — Term and Duties. — A Department of Labor is hereby 
created to be under the control of a Commissioner of Labor who 
shall be elected by the people, whose term of office shall be four years, 
and whose duties shall be prescribed by law. 

Sec. 154. —- Board of Arbitration and Conciliation. — The Legis¬ 
lature shall create a Board of Arbitration and Conciliation in the 
Department of Labor and the Commissioner of Labor shall be ex-officio 
chairman. 

Sec. 168. — Seal of the State. — In the center shall be a five pointed 
star, with one ray directed upward. The center of the star shall 
contain the central device of the seal of the Territory of Oklahoma, 
including the words, “Labor Omnia Vincit.” The upper left hand 
ray shall contain the symbol of the ancient seal of the Cherokee Nation, 
namely : A seven pointed star partially surrounded by a wreath of oak 
leaves. The ray directed upwards shall contain the symbol of the an¬ 
cient seal of the Chickasaw Nation, namely : An Indian warrior stand¬ 
ing upright with bow and shield. The lower left hand ray shall contain 
the svmbol of the ancient seal of the Creek Nation, namely: A sheaf of 
wheat and a plow. The upper right hand ray shall contain the symbol 
of the ancient seal of the Choctaw Nation, namely : A tomahawk, bow, 
and three crossed arrows. The lower right hand ray shall contain the 
symbol of the ancient seal of the Seminole Nation, namely: A village 
with houses and a factory beside a lake upon which an Indian is paddling 
a canoe. Surrounding the central star and grouped between its rays 
shall be forty-five small stars, divided into five clusters of nine stars each, 
representing the forty-five states of the Union, to which the forty-sixth 
is now added. In a circular band surrounding the whole device shall 
be inscribed, “Great Seal of the State of Oklahoma, 1907. 

Sec. 193. — Trial by Jury Waived. — In all issues of fact joined in 
any court, all parties may waive the right to have the same deter- 




730 


APPENDIX 


mined by jury; in which case the finding of the judge, upon the facts, 
shall have the force and effect of a verdict by jury. 

Sec. 194. — Jury to Return General Verdict; Court May Direct Special 
Findings. — In all jury trials, the jury shall return a general verdict, 
and no law in force, nor any law hereafter enacted, shall require the 
court to direct the jury to make findings on particular questions of 
fact; but the court may, in its discretion, direct such special findings. 


ARTICLE IX 

CORPORATIONS - DEFINITION 

Sec. 205. — Have All Powers not Possessed by Individuals. — As used 
in this article, the term “corporation” or “company” shall include 
all associations and joint stock companies, having any power or 
privileges, not possessed by individuals, and exclude all municipal 
corporations and public institutions owned or controlled by the State; 
the term “charter” shall mean the charter of incorporation, by or 
under which any corporation is formed. The term “license” shall 
mean the authority under which all foreign corporations are permitted 
to transact business in this State. 

Sec. 206. — Common Carriers; Right to Construct and Operate Lines. 
— Every railroad, oil pipe, car, express, telephone or telegraph cor¬ 
poration or association organized or authorized to do a transportation 
or transmission business under the laws of this State for such purpose, 
shall, each respectively, have the right to construct and operate its line 
between any points in this State, and as such to connect at the State 
line with like lines; and every such company shall have the right 
with its road or line, to intersect, connect with, or cross any railroad 
or such line. 

Sec. 207. — To Transport Each Other's Cars and Passengers. — 
Every railroad, car, or express company, shall each, respectively, 
receive and transport without delay or discrimination each other’s cars, 
loaded or empty, tonnage, and passengers, under such rules and regula¬ 
tions as may be prescribed by law or any commission created by this 
Constitution or by act of the Legislative for that purpose. 

Sec. 208. — Oil Pipe Companies Subject to Control of Commission. — 
All oil pipe companies shall be subject to the reasonable control and 
regulation of the Corporation Commission, and shall receive and trans¬ 
port each other’s tonnage or oils, or commodities, under such rules and 
regulations as shall be prescribed by law, or such commission. 

Sec. 209. — Telephone and Telegraph Lines to Transmit Each Other's 
Messages. — All telephone and telegraph lines, operated for hire, 
shall each, respectively, receive and transmit each other’s messages with¬ 
out delay or discrimination, and make physical connections with each 
other’s lines, under such rules and regulations as shall be prescribed 
by law, or by any commission created by this Constitution, or any act of 
the Legislature, for that purpose. 

Sec. 210. — Railroads Public Highways; Office in State; Meetings of 
Directors , etc. — Railroads heretofore constructed, or which may 



CONSTITUTION OF OKLAHOMA 


731 


hereafter be constructed in this State, are hereby declared public 
highways. Every railroad or other public service corporation organ¬ 
ized or doing business in this State, under the laws or authority thereof, 
shall have and maintain a public office or place in this State, for the 
transaction of its business, where transfers of stock shall be made, and 
where shall be kept, for inspection by the stockholders of such corpora¬ 
tion, books, in which shall be recorded the amount of capital stock 
subscribed, the names of the owners of stock, the amounts owned by 
them, respectively; the amount of stock paid, and by whom; the 
transfer of said stock, with the date of transfer; the amount of its assets 
and liabilities, and the names and places of residence of its officers, 
and such other matters required by law or by order of the Corporation 
Commission. The directors of every railroad company, or other public 
service corporation, shall hold at least one meeting annually in this State, 
public notice of which shall be given thirty days previously, and the 
president or superintendent of every railroad company and other 
public service corporation organized or doing business in this State under 
the laws of this State, or the authority thereof, shall report annually 
under oath, and make such other reports as may be required by law or 
order of the Corporation Commission, to said Commission, their acts 
and doings, which report shall include such matters relating to railroads 
and other public service corporations as may be prescribed by law. 
The Legislature shall pass all necessary laws enforcing, by suitable pen¬ 
alties, all the provisions in this section. 

Sec. 211. — Rolling Stock Considered Personal Property, Subject to 
Sale. — The rolling stock and all other movable property belonging 
to any railroad, transportation, transmission, or other public corpo¬ 
ration in this State, shall be considered personal property, and its real 
and personal property, or any part thereof, shall be liable to execution 
and sale in the same manner as the property of individuals; and the 
Legislature shall pass no laws exempting any such property from execu¬ 
tion and sale. 

Sec. 212. — Must not Consolidate with Competing Lines. — No 
public service corporation, or the lessees, purchasers, or managers 
thereof shall consolidate the stock, property, or franchises, of such cor¬ 
poration with, or lease] or purchase the works or franchises of, or in 
any way control, any other public service corporation owning or having 
under its control a parallel or competing line; except by enactment of the 
Legislature upon the recommendation of the Corporation Commission: 
Provided, however, That the Legislature shall never enact any law per¬ 
mitting any public service corporation, the lessees, purchasers, or mana¬ 
gers thereof, when such public service corporation is organized under the 
laws of any other State or of the United States, to consolidate the stock, 
property, or franchise, of such corporation with, or lease., or purchase, the 
works of, franchises of, or in any way control, any other public service 
corporation, organized under the laws of any other State, or of the 
United States, owning or having under its control in this State, a parallel 
or competing line ; nor shall any officer of such corporation act as an 
officer of any other corporation owning or controlling a parallel or com¬ 
peting line. 




732 


APPENDIX 


Sec. 213. — Must not Consolidate with Company Organized in Another 
State. — Neither shall any railroad company, transportation company, 
or transmission company, organized under the laws of this State, 
consolidate by private or judicial sale, or otherwise, with any railroad 
company, transportation company, or transmission company organized 
under the laws of any other State, or of the United States. 

Sec. 214. —• Street Railroad; Consent of Local Authorities Required. — 
No law shall be passed by the Legislature granting the right to con¬ 
struct and operate a street railroad within any city, town, or village, 
or upon any public highway, without first acquiring the consent 
of the local authorities having control of the street or highway proposed 
to be occupied by such street railroad. 

Sec. 215. — Must Accept Provision of Constitution. — No railroad, 
transportation, transmission, or other public service corporation in 
existence at the time of the adoption of this Constitution, shall have 
the benefit of any future legislation, except on condition of complete 
acceptance of all the provisions of this Constitution, applicable to rail¬ 
roads, transportation companies, transmission companies, and other 
public service corporations: Provided, That nothing herein shall be 
construed'as validating any charter which may be invalid, or waiving 
any of the conditions contained in any charter. 

Sec. 216. — No Railroad to Transport Articles Manufactured by it. — 
No railroad company shall transport, within this State, any article 
or commodity manufactured, mined, or produced by it, or under its 
authority, or which it may own, in whole or in part, or in which it 
may have any interest, direct or indirect, except such articles or com¬ 
modities as may be necessary and intended for its use in the conduct of 
its business as a common carrier. 

Sec. 217. — No Free Transportation; Exceptions; Penalty for Viola¬ 
tion. — No railroad corporation or transportation company, or trans¬ 
mission company shall, directly or indirectly, issue or give any free 
frank or free ticket, free pass or other free transportation, for any use, 
within this State, except to its employes and their families, its officers, 
agents, surgeons, physicians, and attorneys at law; to ministers 
of religion, traveling secretaries for railroad Young Men’s Christian 
Associations, inmates of hospitals and charitable and eleemosynary in¬ 
stitutions and persons exclusively engaged in charitable and eleemo¬ 
synary work; to indigent, destitute, and homeless persons, and to such 
persons when transported by charitable societies or hospitals, and the 
necessary agents, employed in such transportations; to inmates of the 
National Homes, or State Homes for disabled Volunteer Soldiers, and of 
Soldiers’ and Sailors’ Homes, including those about to enter and those 
returning home after discharge, and boards of managers of such Homes ; 
to members of volunteer fire departments and their equipage while 
traveling as such; to necessary caretakers of live stock, poultry, and 
fruit; to employes of sleeping cars, of express cars, and to linemen of 
telegraph and telephone companies ; to Railway Mail Service employes, 
postoffice inspectors, customs inspectors, and immigration inspectors; 
to newsboys on trains, baggage agents, witnesses attending any legal 
investigation in which the railroad company or transportation company 



CONSTITUTION OF OKLAHOMA 


733 


is interested, persons injured in wrecks, and physicians and nurses at¬ 
tending such persons: Provided, That this provision shall not be con¬ 
strued to prohibit the interchange of passes for the officers, agents, and 
employes of common carriers and their families ; nor to prohibit any com¬ 
mon carriers from carrying passengers free with the object of providing 
relief in cases of general epidemic, pestilence, or other calamitous 
visitation; nor to prevent them from transporting, free of charge, to 
their places of employment persons entering their service, and the 
interchange of passes to that end; and any railroad, transportation, 
or transmission company or any person, other than the persons excepted 
in this provision, who grants or uses any such free frank, free ticket, free 
pass, or free transportation within this State, shall be deemed guilty of a 
crime, and the Legislature shall provide proper penalties for the violation 
of any provision of this section by the railroad or transportation or trans¬ 
mission company, or by any individual: Provided, That nothing herein 
shall prevent the Legislature from extending these provisions so as to 
exclude such free transportations or franks from other persons. 

Sec. 218. — Railroads to Pass Through County Seats. — No railroad 
hereafter constructed in this State shall pass within a distance of four 
miles of any county seat without passing through the same and estab¬ 
lishing and maintaining a depot therein, unless prevented by natural 
obstacles such as streams, hills, or mountains: Provided, Such town, 
or its citizens, shall grant the right-of-way through its limits and suffi¬ 
cient ground for ordinary depot purposes. 

Sec. 219. — Election; Terms; Vacancy. — A Corporation Commis¬ 
sion is hereby created, to be composed of three persons, who shall be 
elected by the people at a general election for State officers, and their 
terms of office shall be six years : Provided, Corporation Commissioners 
first elected under this Constitution shall hold office as follows: One 
shall serve until the second Monday in January, nineteen hundred and 
nine; one until the second Monday in January, nineteen hundred and 
eleven; and one until the second Monday in January, nineteen hundred 
and thirteen; their terms to be decided by lot immediately after they 
shall have qualified : In case of a vacancy in said office, the Governor 
of the State shall fill such vacancy by appointment until the next general 
election, when a successor shall be elected to fill out any unexpired term. 

Sec. 231. — Appeals to Supreme Court; Acts of Commission Not to be 
Suspended Except by Supreme Court. — From any action of the Com¬ 
mission prescribing rates, charges of classifications of traffic, . or 
affecting the train schedule of any transportation company, or requiring 
additional facilities, conveniences, or public service of any transportation 
or transmission company, or refusing to approve a suspending bond, 
or requiring additional security thereon as hereinafter provided for, 
an appeal (subject to such reasonable limitations as to time, regulations 
as to procedure and provisions as to cost, as may be prescribed by law) 
may be taken by the corporation whose rates, charges, or classifications 
of traffic, schedule, facilities, conveniences, or service, are effected, or 
by any person deeming himself aggrieved by such action, or (if allowed 
by law) by the State. Until otherwise provided by law, such appeal 
shall be taken in the manner in which appeals may be taken to the Su- 



734 


APPENDIX 


preme Court from the District Courts, except that such an apppal shall 
be of right. 

Sec. 242. — Commission to Ascertain Cost, Indebtedness, Bonds, and 
Salaries; Annual Report of Information. — The Commission shall 
ascertain, and enter of record, the same to be a public record, as 
early as practicable, the amount of money expended in construction 
and equipment per mile of every railroad and other public service 
corporation in Oklahoma, the amount of money expended to procure the 
right of way, and the amount of money it would require to reconstruct 
the roadbed, track, depots, and transportation facilities, and to replace 
all the physical properties belonging to the railroad or other public serv¬ 
ice corporation. It shall also ascertain the outstanding bonds, deben¬ 
tures, and indebtedness, and the amount, respectively thereof, when 
issued, and the rate of interest, when due, for what purposes issued, how 
used, to whom issued, to whom sold, and the price in cash, property, 
or labor, if any, received therefor, what became of the proceeds, by whom 
the indebtedness is held, the amount purporting to be due thereon, the 
floating indebtedness of the company, to whom due, and his address, 
the credits due on it, the property on hand belonging to the railroad 
company or other public service corporation, and the judicial or other 
sales of said road, its property or franchises, and the amounts purporting 
to have been paid, and in what manner paid therefor. The Commission 
shall also ascertain the amounts paid for salaries to the officers of the 
railroad, or other public service corporation, and the wages paid its em¬ 
ployes. 

Sec. 245. — Duty of Commission to Investigate Rates; May Make 
Corrections and Notify Interstate Commerce Commission. — The said 
Commission shall have power, and it is hereby made its duty, to in¬ 
vestigate all through freight or passenger rates on railroads in this 
State, and when the same are, in the opinion of the Com mi ssion, exces¬ 
sive or levied or laid in violation of the Interstate Commerce Law, 
or the rules and regulations of the Interstate Commerce Commission, 
the proper officials of the railroads are to be notified of the facts and re¬ 
quested to reduce them or make the proper corrections, as the case may 
be. When the rates are not changed, or the proper corrections are not 
made according to the request of the Commission, it shall be the duty 
of the latter to notify the Interstate Commerce Commission and to 
make proper application to it for relief, and the Attorney General or such 
other persons as may be designated by law shall represent the Commis¬ 
sion in all such matters. 

Sec. 251. — Two Cents Per Mile Rate. — No person, company, or 
corporation, receiver, or other agency, operating a railroad, other 
than street railroad or electric railroad, in whole or in part, within this 
State, shall demand or receive for first-class transportation for each 
passenger, between points within this State on the portion of its road 
operated within this State, more than two cents per mile, until otherwise 
provided by law: Provided, However, The Corporation Commission 
shall have the power to exempt any railroad from the operation of this 
section upon satisfactory proof that-it cannot earn a just compensation 
for the services rendered by it to the public, if not permitted to charge 



CONSTITUTION OF OKLAHOMA 


735 


more than two cents per mile for the transportation of passengers within 
the State. 

Sec. 254. — Must Not Contribute to Elections. — No corporation 
organized or doing business in this State shall be permitted to influence 
elections or official duty by contributions of money or anything of value. 

Sec. 255. — Shall Not Own Stock of Another Corporation. —- No 
corporation chartered or licensed to do business in this State shall own, 
hold, or control, in any manner whatever, the stock of any competitive 
corporation or corporations engaged in the same kind of business, in or 
out of the State, except such stock as may be pledged in good faith to 
secure bona fide indebtedness acquired upon foreclosure, execution, sale, 
or otherwise for the satisfaction of debt. 

Sec. 256. — Must Dispose of Stock in Twelve Months; Bank and 
Trust Company. — In all cases where any corporation acquires stock in 
any other corporation, as herein provided, it shall be required to dispose 
of the same within twelve months from the date of acquisition; and 
during the period of its ownership of such stock it shall have no right to 
participate in the control of such corporation, except when permitted 
by order of the Corporation Commission. No trust company, or bank 
or banking company shall own, hold, or control, in any manner whatever, 
the stock of any other trust company, or bank or banking company, 
except such stock as may be pledged in good faith to secure bona fide 
indebtedness, acquired upon foreclosure, execution sale, or otherwise for 
the satisfaction of debt; and such stock shall be disposed of in the time 
and manner hereinbefore provided. 

Sec. 257. — Must Submit to Arbitration. — Every license issued 
or charter granted to a mining or public service corporation, foreign 
or domestic, shall contain a stipulation that such corporation will 
submit any difference it may have with employes in reference to 
labor, to arbitration, as shall be provided by law. 

Sec. 260. — Monopoly; Must Not Discriminate. — Until otherwise 
provided by law, no person, firm, association, or corporation engaged 
in the production, manufacture, distribution, or sale of any com¬ 
modity of general use, shall, for the purpose of creating a monopoly 
or destroying competition in trade, discriminate between different per¬ 
sons, associations, or corporations, or different sections, communities, 
or cities of the State, by selling such commodity at a lower rate in one 
section, community, or city than in another, after making due allowance 
for the difference, if any, in the grade, quantity, or quality, and in the 
actual cost of transportation from the point of production or manufac¬ 
ture. 

ARTICLE X 

REVENUE AND TAXATION 

Sec. 271. — Exemptions; Manufacturing Establishments. — The 
Legislature may authorize any incorporated city or town, by a majority 
vote of its electors voting thereon, to exempt manufacturing establish¬ 
ments and public utilities from municipal taxation, for a period not 
exceeding five years, as an inducement to their location. 




736 


APPENDIX 


Sec. 272. — Assessments for Local Improvements. — The-Legislature 
may authorize county and municipal corporations to levy and collect 
assessments for local improvements upon property benefited thereby, 
homesteads included, without regard to a cash valuation. 

Sec. 273. —• Property Assessed at Fair Cash Value; Penalty. —• 
All property which may be taxed ad valorem shall be assessed for 
taxation at its fair cash value, estimated at the price it would bring at a 
fair voluntary sale ; and any officer, or other person authorized to assess 
values, or subjects, for taxation, who shall commit any wilful error in the 
performance of his duty, shall be deemed guilty of malfeasance, and 
upon conviction thereof shall forfeit his office, and be otherwise pun¬ 
ished as may be provided by law. 

Sec. 281. — Credit of State Not Given. — The credit of the State 
shall not be given, pledged, or loaned to any individual, company, cor¬ 
poration, or association, municipality, or political subdivision of the 
State; nor shall the State become an owner or stockholder in, nor 
make donation by gift, subscription to stock, by tax or otherwise, to 
any company, association, or corporation. 

Sec. 289. — State May Contract Debts; Limitation. — The State 
may, to meet casual deficits or failure in revenues, or for expenses 
not provided for, contract debts; but such debts, direct and con¬ 
tingent, singly or in the aggregate, shall not, at any time, exceed four 
hundred thousand dollars, and the moneys arising from the loans 
creating such debts shall be applied to the purpose for which they were 
obtained or to repay the debts so contracted, and to no other purpose 
whatever. 

Sec. 290. — May Contract Debts; to Repel Invasion. — In addition 
to the above limited power to contract debts, the State may con¬ 
tract debts to repel invasion, suppress insurrection or to defend the 
State in war; but the money arising from the contracting of such 
debts shall be applied to the purpose for which it was raised, or to 
repay such debts, and to no other purpose whatever. 

Sec. 291. — Debts; Limitations; Submitted to People. —Except 
the debts specified in sections twenty-three and twenty-four of this 
article, no debts shall hereafter be contracted by or on behalf of this 
State, unless such debt shall be authorized by law for some work 
or object, to be distinctly specified therein; and such law shall im¬ 
pose and provide for the collection of a direct annual tax to pay, and 
sufficient to pay, the interest on such debt as it falls due and also 
to pay and discharge the principal of such debt within twenty-five 
years from the time of the contracting thereof. No such law shall take 
effect until it shall, at a general election, have been submitted to the 
people and have received a majority of all the votes cast for and against 
it at such election. On the final passage of such bill in either House 
of the Legislature, the question shall be taken by yeas and nays, to be 
duly entered on the journals thereof, and shall be: “Shall this bill 
pass, and ought the same to receive the sanction of the people ?” 

Sec. 292. — Limitation Upon Debts of City, County, etc.; Vote by 
People; Sinking Fund. — No county, city, town, township, school 
district, or other political corporation, or subdivision of the State, 



CONSTITUTION OF OKLAHOMA 


737 


shall be allowed to become indebted, in any manner, or for any pur¬ 
pose, to an amount exceeding, in any year, the income and revenue 
provided for such year, without the assent of three-fifths of thti voters 
thereof, voting at an election, to be held for that purpose, nor in cases 
requiring such assent, shall any indebtedness be allowed to be incurred 
to an amount including existing indebtedness, in the aggregate exceed¬ 
ing five per centum of the valuation of the taxable property therein, 
to be ascertained from the last assessment for State and county pur¬ 
poses previous to the incurring of such indebtedness: Provided, That 
any county, city, town, township, school district, or other political cor¬ 
poration, or subdivision of the State, incurring any indebtedness, requir¬ 
ing the assent of the voters as aforesaid, shall, before or at the time of 
doing so, provide for the collection of an annual tax sufficient to pay the 
interest on such indebtedness as it falls due, and also to constitute 
a sinking fund for the payment of the principal thereof within twenty- 
five years from the time of contracting the same. 

Sec. 293. — Public Utilities; Indebtedness for; Sinking Fund .—• 
Any incorporated city or town in this State may, by a majority of 
the qualified property tax paying voters of such city or town, voting 
at an election to be held for that purpose, be allowed to become 
indebted in a larger amount than that specified in section twenty-six, 
for the purpose of purchasing or constructing public utilities, or for 
repairing the same, to be owned exclusively by such city: Provided, 
That any such city or town incurring any such indebtedness requiring 
the assent of the voters as aforesaid, shall have the power to provide 
for, and, before or at the time of incurring such indebtedness, shall 
provide for the collection of an annual tax in addition to the other 
taxes provided for by this Constitution, sufficient to pay the interest 
on such indebtedness as it falls due, and also to constitute a sinking fund 
for the payment of the principal thereof within twenty-five years from 
the time of contracting the same. 


ARTICLE XII 

HOMESTEAD AND EXEMPTIONS 

Sec. 304. — What to Consist of. — The homestead of any family 
in this State, not within any city, town, or village, shall consist of not 
more than one hundred and sixty acres of land, which may be in one 
or more parcels, to be selected by the owner. The homestead within 
any city, town, or village, owned and occupied as a residence only, shall 
consist of not exceeding one acre of land, to be selected by the owner: 
Provided, That the same shall not exceed in value the sum of five 
thousand dollars, and in no event shall the homestead be reduced to less 
than one-quarter of an acre, without regard to value: And Provided 
Further, That in case said homestead is used for both residence and busi¬ 
ness purposes, the homestead interest therein shall not exceed in value 
the sum of five thousand dollars: Provided, That nothing in the laws 
of the United States, or any treaties with the Indian Tribes in the State, 
shall deprive any Indian or other allottee of the benefit of the homestead 





738 


APPENDIX 


and exemption laws of the State: And Provided Further, That any 
temporary renting of the homestead shall not change the character of 
the same when no other homestead has been acquired. 

Sec. 305. — Protected from Forced Sale; Consent of Wife. — The 
homestead of the family shall be, and is hereby protected from forced 
sale, for the payment of debts, except for the purchase money therefor 
or a part of such purchase money, the taxes due thereon, or for work 
and material used in constructing improvements thereon; nor shall the 
owner, if married, sell the homestead without the consent of his or her 
spouse, given in such manner as may be prescribed by law : Provided, 
Nothing in this article shall prohibit any person from mortgaging his 
homestead, the spouse, if any, joining therein; nor prevent the sale 
thereof on foreclosure to satisfy any such mortgage. 

Sec. 316. — Legal Rate of Interest. — The legal rate of interest 
shall not exceed six per centum per annum in the absence of any 
contract as to the rate of interest, and, by contract, parties may 
agree upon any rate not to exceed ten per centum per annum, and, 
until reduced by the Legislature, said rates of six and ten per centum 
shall be, respectively, the legal and the maximum contract rates of 
interest. 


ARTICLE XVIII 

MUNICIPAL CORPORATIONS 

Sec. 411. — Legislature May Provide for Organization. — Section 1. 
Municipal corporations shall not be created by special laws, but the 
Legislature, by general laws shall provide for the incorporation and or¬ 
ganization of cities and towns and the classification of same in propor¬ 
tion to population, subject to the provisions of this article. 

CHARTERS 

Sec. 413. — Procedure for Obtaining Special Charter; Election. — 
Any city containing a population of more than two thousand in¬ 
habitants may frame a charter for its own government, consistent 
with and subject to the Constitution and laws of this State, by 
causing a board of freeholders, composed of two from each ward, 
who shall be qualified electors of said city, to be elected by the 
qualified electors of said city, at any general or special election, 
whose duty it shall be, within ninety days after such election, to 
prepare and propose a charter for such city, which shall be signed in 
duplicate by the members of such board or a majority of them, and 
returned, one copy of said charter to the chief executive officer of such 
city, and the other to the Register of Deeds to the county in which 
said city shall be situated. Such proposed charter shall then be 
published in one or more newspapers published and of general circula¬ 
tion within said city, for at least twenty-one days, if in a daily paper, 
or in three consecutive issues, if in a weekly paper, and the first publi¬ 
cation shall be made within twenty days after the completion of the 



CONSTITUTION OF OKLAHOMA 


739 


charter; and within thirty days, and not earlier than twenty days 
after such publication, it shall be submitted to the qualified electors of 
said city at a general or special election, and if a majority of such 
qualified electors voting thereon shall ratify the same, it shall thereafter 
be submitted to the Governor for his approval, and the Governor shall 
approve the same if it shall not be in conflict with the Constitution and 
laws of this State. Upon such approval it shall become the organic 
law of such city and supersede any existing charter and all amendments 
thereof and all ordinances inconsistent with it. A copy of such charter, 
certified by the chief executive officer, and authenticated by the seal of 
such city, setting forth the submission of such charter to the electors 
and its ratification by them shall after the approval of such charter by 
the Governor, be made in duplicate and deposited, one in the office of 
the Secretary of State, and the other, after being recorded in the office 
of said Register of Deeds, shall be deposited in the archives of the city; 
and thereafter all courts shall take judicial notice of said charter. 
The charter so ratified may be amended by proposals therefor, sub¬ 
mitted by the legislative authority of the city to the qualified electors 
thereof (or by petition as hereinafter provided) at a general or special 
election, and ratified by a majority of the qualified electors voting 
thereon, and approved by the Governor as herein provided for the 
approval of the charter. 

Sec. 414. — Board of Freeholders to Draft Charter. — An election 
of such board of freeholders may be called at any time by the legis¬ 
lative authority of any such city, and such election shall be called 
by the chief executive officer of any such city within ten days after there 
shall have been filed with him a petition demanding the same, signed by 
a number of qualified electors residing within such city, equal to twenty- 
five per centum of the total number of votes cast at the next preceding 
general municipal election; and such election shall be held not later 
than thirty days after the call therefor. At such election a vote shall be 
taken upon the question of whether or not further proceedings toward 
adopting a charter shall be had in pursuance to the call, and unless a 
majority of the qualified electors voting thereon shall vote to proceed 
further, no further proceeding shall be had, and all proceedings up to 
that time shall be of no effect. 

INITIATIVE AND REFERENDUM 

Sec. 415. — Reserved to Every Municipality. — The powers of the 
initiative and referendum, reserved by this Constitution to the 
people of the State and the respective counties and districts therein, 
are hereby reserved to the people of every municipal corporation 
now existing or which shall hereafter be created wdthin this State, wdth 
reference to all legislative authority which it may exercise, and amend¬ 
ments to charters for its own government in accordance with the pro¬ 
visions of this Constitution. 

Sec. 416. — Petition for; Requisite Number. — Every petition for 
either the initiative or referendum in the government of a municipal 
corporation shall be signed by a number of qualified electors residing 




740 


APPENDIX 


within the territorial limits of such municipal corporation, equal 
to twenty-five per centum of the total number of votes cast at the 
next preceding election, and every such petition shall be filed with the 
chief executive officer of such municipal corporation. 

Sec. 417. — Initiative; Enactment of Ordinance. —-When such 
petition demands the enactment of an ordinance or other legal act 
other than the grant, extension, or renewal of a franchise, the chief 
executive officer shall present the same to the legislative body of 
such corporation at its next meeting, and unless the said petition shall 
be granted more than thirty days before the next election at which any 
city officers are to be elected, the chief executive officer shall submit 
the said ordinance or act so petitioned for, to the qualified electors at 
said election; and if a majority of said electors voting thereon shall 
vote for the same, it shall thereupon become in full force and effect. 

Sec. 418. — Referendum on Ordinance. — When such petition de¬ 
mands a referendum vote upon any ordinance or any other legal act 
other than the grant, extension, or renewal of a franchise, the chief 
executive officer shall submit said ordinance or act to the qualified 
electors of said corporation at the next succeeding general municipal 
election, and if, at said election, a majority of the electors voting 
thereon shall not vote for the same, it shall thereupon stand repealed. 

Sec. 419. — Amendment to Charter; How Made. —-When such 
petition demands an amendment to a charter, the chief executive 
officer shall submit such amendment to the qualified electors of said 
municipal corporation at the next election of any officer of said cor¬ 
poration, and if, at said election, a majority of said electors voting 
thereon shall vote for such amendment, the same shall thereupon 
become an amendment to and a part of said charter, when approved by 
the Governor and filed in the same manner and form as an original char¬ 
ter is required by the provisions of this article to be approved and filed. 

FRANCHISES 

Sec. 420. — Vote by People; Election. — No municipal corporation 
shall ever grant, extend, or renew a franchise, without the approval 
of a majority of the qualified electors residing within its corporate 
limits, who shall vote thereon at a general or special election; and the 
legislative body of any such corporation may submit any such matter 
for approval or disapproval to such electors at any general municipal 
election, or call a special election for such purpose at any time upon 
thirty days’ notice; and no franchise shall be granted, extended, or 
renewed for a longer term than twenty-five years. 

Sec. 421. — Petition for Election. — Whenever a petition signed 
by a number of qualified electors of any municipal corporation equal 
to twenty-five per centum of the total number of votes cast at the next 
preceding general municipal election, demanding that a franchise be 
granted, extended, or renewed, shall be filed with the chief executive 
officer of said corporation, the chief executive officer shall, within ten 
days thereafter, call a special election, at which he shall submit the 
question of whether pr pot such franchise shall be granted, extended, 



CONSTITUTION OF OKLAHOMA 


741 


or renewed, and if, at said election, a majority of the said electors voting 
thereon shall vote for the grant, extension, or renewal of such franchise, 
the same shall be granted by the proper authorities at the next succeed¬ 
ing regular meeting of the legislative body of the city. 

Sec. 422. May Engage in Any Business. — Every municipal 
corporation within this State shall have the right to engage in any 
business or enterprise which may be engaged in by a person, firm, or 
corporation by virtue of a franchise from said corporation. 

Sec. 423. — Reservation of Control Over Public Highways; Charges 
Regulated; Exclusive Franchises Prohibited. — No grant, extension, 
or renewal of any franchise or other use of the streets, alleys, or other 
public grounds or ways of any municipality, shall divest the State, 
or any of its subordinate subdivisions, of their control and regulation 
of such use and enjoyment. 

Nor shall the power to regulate the charges for public services be sur¬ 
rendered ; and no exclusive franchise shall ever be granted. 

Sec. 435. — Eight Hours. — Eight hours shall constitute a day’s 
work in all cases of employment by and on behalf of the State or any 
county or municipality. 


CONVICT LABOR 

Sec. 436. —- Contracting for. — The contracting of convict labor is 
hereby prohibited. 


CHILD LABOR 

Sec. 437. — Employment Prohibited. — The employment of children, 
under the age of fifteen years, in any occupation, injurious to health 
or morals or especially hazardous to life or limb, is hereby prohibited. 

Sec. 438. — Underground Work Prohibited; Eight Hours a Day. —■ 
Boys under the age of sixteen years, and women and girls, shall not 
be employed, underground, in the operation of mines; and, except in 
case of emergency, eight hours shall constitute a day’s work under¬ 
ground in all mines in the State. 

Sec. 439. — Health and Safety of Employes. — The Legislature shall 
pass laws to protect the health and safety of employes in factories, in 
mines, and on railroads. 

CONTRIBUTORY NEGLIGENCE 

Sec. 440. — Defense of. — The defense of contributory negligence or 
of assumption of risk shall, in all cases whatsoever, be a question of 
fact, and shall, at all times, be left to the jury. 

PERSONAL INJURIES 

Sec. 441. — Right of Action; Damages. — The right of action to 
recover damages for injuries resulting in death shall never be 
abrogated, and the amount recoverable shall not be subject to any 
statutory limitation. 




742 


APPENDIX 


WAIVER OF RIGHTS 

Sec. 442. — Contracts Void. — Any provision of a contract, express 
or implied, made by any person, by which any of the benefits of this 
Constitution is sought to be waived, shall be null and void. 

Sec. 443. — Void Provisions in Contract. — Any provision of any 
contract or agreement, express or implied, stipulating for notice or 
demand other than such as may be provided by law, as a condition 
precedent to establish any claim, demand, or liability, shall be null and 
void. 

DEFINITION OF RACES 

Sec. 447. — Convention; Referendum Vote. — No convention shall 
be called by the Legislature to propose alterations, revisions, or 
amendments to this Constitution, or to propose a new Constitution, 
unless the law providing for such convention shall first be approved by 
the people on a referendum vote at a regular or special election, and any 
amendments, alterations, revisions, or new Constitution, proposed by 
such convention, shall be submitted to the electors of the State at a 
general or special election and be approved by a majority of the electors 
voting thereon, before the same shall become effective : Provided, That 
the question of such proposed convention shall be submitted to the 
people at least once in every twenty years. 

Sec. 448. — Initiative Petition. — Sec. 3. This article shall not im¬ 
pair the right of the people to amend this Constitution by a vote upon 
an initiative petition therefor. 


EXTRACTS FROM THE CONSTITUTION OF THE STATE 
OF CALIFORNIA 

I subjoin some singular provisions from the Constitution of California 
adopted in 1879. 


ARTICLE XIX 

CHINESE 

Section 1. The Legislature shall prescribe all necessary regulations 
for the protection of the State, and the counties, cities, and towns thereof 
from the burdens and evils arising from the presence of aliens who are 
or may become vagrants, paupers, mendicants, criminals, or invalids af¬ 
flicted with contagious or infectious diseases, and from aliens otherwise 
dangerous or detrimental to the well-being or peace of the State, and to 
impose conditions upon which such persons may reside in the State, and 
provide the means and mode of their removal from the State, upon failure 
and refusal to comply with such conditions ; provided, that nothing con- 




CONSTITUTION OF OKLAHOMA 


743 


tained in this section shall be construed to impair or limit the power of 
the Legislature to pass such police laws or other regulations as it may 
deem necessary. 

Sec. 2. No corporation now existing or hereafter formed under the 
laws of this State, shall, after the adoption of this Constitution, employ, 
directly or indirectly, in any capacity, any Chinese or Mongolian. The 
Legislature shall pass such laws as may be necessary to enforce this 
provision. 

Sec. 3. No Chinese shall be employed on any State, county, munici¬ 
pal, or other public work, except in punishment for crime. 

Sec. 4. The presence of foreigners ineligible to become citizens of the 
United States is declared to be dangerous to the well-being of the State, 
and the Legislature shall discourage their immigration by all the means 
within its power. Asiatic coolieism is a form of human slavery, and is 
for ever prohibited in this State, and all contracts for coolie labour shall 
be void. All companies or corporations, whether formed in this country 
or any foreign country, for the importation of such labour, shall be sub¬ 
ject to such penalties as the Legislature may prescribe. The Legislature 
shall delegate all necessary power to the incorporated cities and towns of 
this State for the removal of Chinese without the limits of such cities and 
towns, or for their location within prescribed portions of those limits, and 
it shall also provide the necessary legislation to prohibit the introduction 
into this State of Chinese after the adoption of the Constitution. This 
section shall be enforced by appropriate legislation. 


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